Case: 1:13-cv-00501-TSB Doc #: 13 Filed: 07/22/13 Page: 1 of 15 PAGEID #: 91

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL, et al. Plaintiffs,
vs. JOHN KASICH, et al.
Defendants.

: Case No. 1:13-cv-501 : : : Judge Timothy S. Black : : : : :

ORDER GRANTING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.
Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors.
How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot ...

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at least not under the circumstances here. By treating lawful same sex marriages differently than it treats lawful opposite sex
marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws."
The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as "married" and James Obergefell as his "surviving spouse."
I. AGREED FACTS AND CIRCUMSTANCES Less than a month ago, on June 26, 2013, the United States Supreme Court issued its historic decision in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). The Supreme Court held that the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it denied fundamental fairness and equal protection of the law to gay citizens. While the holding in Windsor is ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same sex marriage, the issue whether States can refuse to recognize out-of-state same sex marriages is now surely headed to the fore. Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present lawsuit, “the state-law shoe” has now dropped in Ohio. Windsor, 133 S.Ct. at 77-78.
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Plaintiffs James Obergefell and John Arthur are male Cincinnati residents who have been living together in a committed and intimate relationship for more than twenty years, and they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage.
Mr. Arthur is currently a hospice patient. He is dying of amyotrophic lateral sclerosis (“ALS”). ALS is a progressive disease that has caused Mr. Arthur severe and worsening muscle deterioration, has no known cure, and is fatal.
On July 11, 2013, Plaintiffs traveled to Maryland in a special jet equipped with medical equipment and a medical staff necessary to serve Mr. Arthur’s needs, whereupon Plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County, Maryland. They returned to Cincinnati that same day.
Plaintiffs’ marriage is legally recognized in Maryland and by the federal government by virtue of the very recent and historic decision of the United States Supreme Court in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). Plaintiffs’ marriage is not recognized in Ohio, as legal recognition of same-sex marriages is prohibited by Ohio law enacted in 2004. See Ohio Rev. Code. § 3101.01(C )(2)&(3) and Ohio Constitution Art. XV, §11.
Mr. Arthur is certain to die soon. Consistent with Ohio law, his death record will list his “marital status at time of death” as “unmarried” and will not record Mr. Obergefell as the “surviving spouse.”
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II. PLAINTIFFS’ MOTION Plaintiffs seek an order of this Court declaring unconstitutional the Ohio laws forbidding recognition of legal same sex marriages from other states and requiring the Registrar of Ohio death certificates to record John Arthur as "married" and to record James Obergefell as his "surviving spouse" at the time of Mr. Arthur’s death, which is imminent.
III. STANDARD OF REVIEW In determining whether to grant injunctive relief, this Court must weigh four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). These four considerations are factors to be balanced, not prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997), and there is no “rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief.” Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984). Plaintiffs bear the burden of demonstrating their entitlement to a preliminary injunction, and an “injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.”
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Overstreet, 305 F.3d at 513. In the Sixth Circuit, “[t]he standard for issuing a temporary restraining order is logically the same as for a preliminary injunction with emphasis, however, on irreparable harm[.]” Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist. LEXIS 7631, at *2 (N.D. Ohio Jan 26, 2011) (citing Motor Vehicle Bd. of Calif. v. Fox, 434 U.S. 1345, 1347 n.2 (1977)). Moreover, “[a]lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
Even if the court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows “‘serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant’” or if “the merits present a sufficiently serious question to justify further investigation.” In re DeLorean Motor Co., 755 F.2d 1223, 1229-30 (6th Cir. 1985) (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)).
IV. ANALYSIS The Fourteenth Amendment to the Constitution of the United States provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV.
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Plaintiffs, a same-sex couple, are legally married in Maryland. They reside in Ohio where their marriage is not recognized as valid. They are treated differently than they would be if they were in a comparable opposite-sex marriage. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Plaintiffs assert that the Ohio laws barring recognition of out-of-state same sex marriages, enacted in 2004, violate equal protection.
Although the law has long recognized that marriage and domestic relations are matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the restrictions imposed on marriage by states, however, must nonetheless comply with the Constitution. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (statute restricting from marriage persons owing child support violated equal protection).
In Windsor, the Supreme Court again applied the principle of equal protection to a statute restricting marriage when it reviewed the constitutionality of the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for purposes of federal law. This included marriages from the twelve states and District of Columbia in which same-sex couples could legally marry. The Supreme Court held that the federal law was unconstitutional because it violated equal protection and due process principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675.
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In reality, the decision of the United States Supreme Court in Windsor was not unprecedented as the Supreme Court relied upon its equal protection analysis from an earlier case, where, in 1996, the Court held that an amendment to a state constitution, ostensibly just prohibiting any special protections for gay people, in truth violated the Equal Protection Clause, under even a rational basis analysis. Romer v. Evans, 517 U.S. 620 (1996).
In Romer, the Supreme Court struck down Colorado’s Amendment 2 because, the Court held, “[w]e cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Id. at 635. The Supreme Court deemed this “class legislation ... obnoxious to the prohibitions of the Fourteenth Amendment.” Id. (quoting Civil Rights Cases, 109 U.S. 3, 24 (1883)).
As the Supreme Court in Romer held so succinctly: [Colorado law] “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.]” 517 U.S. at 635-36.
As the Supreme Court explained in striking down DOMA, “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the
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unquestioned authority of the States.” Windsor, 133 S. Ct. at 2693. Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v.
Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a politically unpopular group of people cannot justify disparate treatment of that group. Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households containing “unrelated persons” from qualifying for food stamps was held to be in violation of the Equal Protection Clause under a rational basis analysis. The legislative purpose of the statute was to prohibit “hippies” from taking advantage of food stamps. The Supreme Court held that “the classification here … is wholly without any rational basis.” Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the purpose of the federal DOMA was “to impose inequality, not for other reasons like governmental efficiency.” 133 S. Ct. at 2694.
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
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As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus the leading compendium of Ohio law states:
“Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, the validity of a common-law marriage is determined by the law of the state where it was consummated, and that of a solemnized marriage by the law of the state where it was contracted. Likewise, a marriage created in a foreign nation is valid according to that nation's laws. […] The fact that the parties to a marriage left the state to marry in order to evade Ohio's marriage laws is immaterial to the marriage’s validity in Ohio.” See 45 Ohio Jur. 3d Family Law § 11.
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary).
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Likewise, under Ohio law, out-of-state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v. Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although first cousins cannot marry in Ohio, it has been held that if they go to another state where such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”); see also Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal”); see also Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931) (where underage couples leave the state to marry in a state in which their marriage is valid and return to Ohio, the marriage cannot be set aside based on Ohio’s law against marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS 161, at *7, aff’d without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons considered underage in Ohio married in a state where their marriage is legal “cannot be set aside, either because it was not contracted in accordance with the law of this state, or because the parties went out of the state for the purpose of evading the laws of this state”).
Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of
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minors), Ohio law, as applied here, violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws."
Moreover, as the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Windsor, 133 S.Ct. at 2639. The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor, 133 S.Ct. at 2694; see Romer, 517 U.S. at 635-36. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group.
Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association:
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“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. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Zablocki v. Redhail, 434 U.S. 374, 384, (1978) (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Even if the classification of same-sex couples legally married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out-ofstate same sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples. Consequently, Plaintiffs have demonstrated a strong likelihood of success on the merits. Moreover, denying Plaintiffs their associational rights under the circumstances presented here imposes irreparable harm. Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”). As stated, rights associated with marriage are fundamental. Zablocki, 434 U.S. at 374. Thus, this Court has routinely concluded that “Plaintiffs will suffer irreparable harm if the Court does not issue the injunction because of the threatened infringement of the Plaintiffs' fundamental rights.” See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F. Supp. 1235, 1242-43 (S.D. Ohio 1993) rev’d and vacated, 54 F.3d 261 (6th Cir. 1995)
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cert. granted, judgment vacated, 518 U.S. 1001 (1996). In fact, “when an alleged
deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.” § 11A Fed. Prac. & Proc. Civ. § 2948.1 (2d ed.).1
In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must
also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a
temporary restraining order, the official record of Mr. Arthur’s death, and the last official
document recording his existence on earth, will incorrectly classify him as unmarried,
despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly
fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys.
Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery.
He also wants Mr. Obergefell to be buried next to him someday. The family plot
directive limits those who may be interred in the plot to descendants and married spouses.
Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his
1 See, e.g., Overstreet, 305 F.3d at 578 (6th Cir. 2002) (a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiff’s constitutional rights); ACLU of KY v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003) (if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (recognizing that the loss of First Amendment rights, for even a minimal period of time, constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v. Hooks, 121 F.3d 876 (3rd Cir. 1997) (denial of preliminary injunctive relief was irreparable harm to plaintiffs’ voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that plaintiffs may establish irreparable harm based on an alleged violation of their Fourth Amendment rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (finding that a violation of privacy constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (holding allegation of violation of Eighth Amendment rights sufficient showing of irreparable harm); Doe v. Mundy, 514 F.2d 1179 (7th Cir 1975) (denial of constitutional privacy right was irreparable harm); Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C. Colo. 1998) (irreparable harm satisfied by allegation of deprivation of free exercise of religion).
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remains may have to be exhumed when this case is finally decided. See Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002) (disruption of human remains can be irreparable harm).
Finally, the uncertainty around this issue during Mr. Arthur’s final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm. Furthermore, Mr. Arthur’s harm is irreparable because his injury is present now, while he is alive. A later decision allowing an amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will have passed away.
Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition as similarly situated opposite-sex couples. Moreover, upon Mr. Arthur’s death, Plaintiffs’ legally valid marriage will be incorrectly recorded in Ohio as not existing. Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public.
And, as a final consideration, “the public interest is promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban 15
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Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012).

Weighing all factors applicable to analyzing whether injunctive relief should issue,

the Court finds that each factor supports the granting of a temporary restraining order.

V. CONCLUSION

This Court finds that Plaintiffs have established by clear and convincing evidence

their entitlement to injunctive relief. Accordingly, Plaintiffs’ motion for a temporary

restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by

separate order, directing, inter alia, that the local Ohio Registrar of death certificates is

hereby ORDERED not to accept for recording a death certificate for John Arthur which

does not record his status as "married" and/or does not record James Obergefell as Mr.

Arthur’s "surviving spouse” at the time of Mr. Obergefell’s death, which is imminent.

IT IS SO ORDERED.

Date: July 22, 2013

/s/ Timothy S. Black Timothy S. Black United States District Judge

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 Case: 1:13-cv-00501-TSB Doc #: 1 Filed: 07/19/13 Page: 1 of 8 PAGEID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL and

:

Case No. 13-cv-501

JOHN ARTHUR

:

C/O Gerhardstein & Branch, LPA

:

Judge

432 Walnut Street

:

Suite 400

:

VERIFIED COMPLAINT FOR

Cincinnati, Ohio 45202

:

TEMPORARY RESTRAINING

:

ORDER AND DECLARATORY

Plaintiffs,

:

AND INJUNCTIVE RELIEF

:

vs.

:

:

JOHN KASICH

:

77 South High Street 30th Floor

:

Columbus, OH 43215

:

:

and

:

:

MIKE DEWINE, Attorney

:

General of Ohio

:

30 E. Broad Street, 14th Floor

:

Columbus, OH 43215

:

:

and

:

:

CAMILLE JONES, M.D.

:

Registrar

:

City of Cincinnati Health

:

Department, Office of Vital

:

Records

:

1525 Elm Street, 4th floor

:

Cincinnati, OH 45202

:

:

Defendants

:

I. PRELIMINARY STATEMENT 1. This civil rights case challenges as unconstitutional the Ohio statute and state constitution that deny legal recognition in Ohio to the marriages of same-sex couples who are married in one of the many states and numerous foreign countries where same-

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sex marriages are legal. The plaintiffs have been in a committed relationship for over twenty years. John Arthur suffers from debilitating ALS disease and is currently a hospice patient. Following the U.S. Supreme Court’s historic decision United States v. Windsor, the couple traveled to Maryland and was married in accordance with the laws of that state. Now back in Ohio, their marriage is not recognized by the state of Ohio for any purpose. Meanwhile, the marriages of opposite-sex couples that are legal in other states but would not be allowed in Ohio (e.g., marriages of first cousins or a young partner) are routinely accepted in Ohio if those marriages are legal in the state where they are celebrated. This recognition of opposite-sex marriages but rejection of same-sex marriages that do not meet the Ohio criteria for marriage violates rights secured to the plaintiffs by the United States Constitution. Plaintiffs seek declaratory and injunctive relief for themselves and hope to set a precedent that will lead to relief for other same-sex couples.
II. JURISDICTION AND VENUE 2. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C. §1331 and §1343(3) and (4). Venue is proper under 28 U.S.C. §1391.
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III. PARTIES 3. Plaintiff James Obergefell is a resident of Cincinnati, Ohio. He is married to John Arthur. 4. Plaintiff John Arthur is a resident of Cincinnati, Ohio. He is married to James Obergefell. 5. Defendant John Kasich is the Governor of the State of Ohio. In that capacity, he is empowered to ensure that the laws of the State are faithfully executed. See Ohio Const. Art. III, § 2. Defendant Kasich is sued in his official capacity. 6. Defendant Mike DeWine is the Attorney General of the State of Ohio. In that capacity he is the chief legal officer of the State of Ohio. Among his duties is the requirement that he advise state and local officials on questions of Ohio law. See Ohio Rev. Code §109.14. Defendant DeWine is sued in his official capacity. 7. Defendant Dr. Camille Jones, Local Registrar, Cincinnati Health Dept. Office of Vital Records, is responsible for filing death certificates and ensuring the personal information on the death certificate is accurate. Defendant Jones is sued in her official capacity.
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V. FACTS A. James and John Are Married in Maryland
8. James and John have been in a committed relationship and have been Cincinnati residents for more than twenty years.
9. In 2011, John was diagnosed with amyotrophic lateral sclerosis (ALS). The disease has caused progressive and severe muscle deterioration. The disease has no known cure. It is fatal.
10. John is currently a hospice patient. 11. On July 11, 2013, friends and family helped finance a trip by James and John to Maryland. They traveled in a special jet equipped with the medical equipment and a medical staff to serve John’s needs. 12. They were married in the jet as it sat on the tarmac at the Baltimore airport in Anne Arundel County, Maryland. 13. They returned to Cincinnati that same day. B. The Marriage of James and John is not Recognized in Ohio 14. The marriage of James and John is legally recognized in Maryland. 15. Their marriage is also recognized by the federal government by virtue of the decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013). 16. Their marriage is not recognized in Ohio. 17. Ohio law prohibits legal recognition of the marriage of James and John. Ohio Rev. Code. § 3101.01(C )(2) states, “Any marriage entered into by persons of the same-
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sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”
18. The Ohio constitution also prohibits recognition of the marriage of James and John. 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.” C. Marriages of Opposite-Sex Couples are Treated Differently
19. Opposite-sex couples do face restrictions in Ohio on who may marry. ORC §3101.01(A) states, “Male persons of age eighteen years and female persons of the age of sixteen years, not nearer of kin than second cousins…may be joined in marriage.” (emphasis added). But the validity of their marriages is determined by the law of the state where their marriage was celebrated. Mazzolini v. Mazzolini, 168 Ohio St. 357, 358 (Ohio Sup. Ct. 1958) (Marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of Ohio statute to contrary).
20. More than 1,000 federal benefits, privileges and responsibilities are impacted by marital status. Opposite-sex couples who reside in Ohio and not in the jurisdictions where they celebrated their legal marriages will be entitled to all of those federal benefits even if (e.g., due to kinship or age) their marriages would not have been recognized in Ohio had they attempted to marry in Ohio. Same-sex married couples including James and John who do not reside in jurisdictions where they celebrated their legal marriages may be denied most of those federal benefits solely because they live in Ohio. Many
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state and private employer benefits will also be denied to same-sex couples married legally in other states and now residing and/or working in Ohio.
21. The different treatment of same-sex marriages celebrated in other jurisdictions from opposite-sex marriages celebrated in other jurisdictions is not supported by a legitimate state interest and imposes severe harm on same-sex couples including Plaintiffs James and John. D. Need for Injunction
22. James and John have been in love for more than twenty years. They very much want the world to officially remember and record their union as a married couple.
23. One very personal reflection of the harm imposed by defendants is evident from the death record. Unfortunately John is likely to die soon. If John dies first, the death record should record his “marital status at time of death” as “married.” Unless this Court acts, his death record, consistent with Ohio law, will list his status as unmarried. That form should also record James as the “surviving spouse”. Unless this Court acts, the death record will be blank for surviving spouse. That is, unless this court acts, the permanent death records for James and for John will not reflect their marriage at all. Opposite-sex couples married in other jurisdictions under circumstances otherwise not permitted in Ohio are treated completely differently. Their marriages will be reflected as valid and recognized on the death certificates of these opposite-sex couples.
24. Defendant Jones is responsible for keeping all death certificates. She supplies forms and instructions for filling out forms. Ohio law demands that she require that each death certificate, when presented for filing, be completed in accordance with Ohio law.
6

Case: 1:13-cv-00501-TSB Doc #: 1 Filed: 07/19/13 Page: 7 of 8 PAGEID #: 7
25. Because of Ohio’s OH Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C) (2) prohibitions on same sex marriage, Defendant Jones requires a person filling out the death certificate of a decedent who is married to a person of the same sex to indicate the decedent is not married and to not include the spouse’s name on the certificate.
26. Upon information and belief Defendant Jones will not allow John’s death certificate to indicate he was married and that his spouse was James.
27. There is no adequate remedy at law. James and John are suffering irreparable harm. There is no harm to the state or local governments by granting an injunction prohibiting enforcement of the challenged statute and Ohio constitution. The harm to plaintiffs is severe. The public interest is clearly served by this court acting to order recognition in Ohio of same-sex marriages celebrated in other jurisdictions consistent with the manner in which Ohio treats similarly situated opposite-sex couples. Only prompt action by this federal court ordering declaratory and injunctive relief will serve the public interest.
VI. CLAIM FOR RELIEF First Claim – 42 U.S.C. §1983 - United States Constitution 28. Defendants, acting under color of law, have violated rights secured to the plaintiffs by the First and Fourteenth Amendments to the United States Constitution including the right of association, the right to due process of law, and the right to equal protection under the law.
7

Case: 1:13-cv-00501-TSB Doc #: 1 Filed: 07/19/13 Page: 8 of 8 PAGEID #: 8

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that this Court:

A. Issue a dec laratory judgment that the sta tute and Ohio Constitu tional

provision at issue in th is case, as a pplied to the plaintiffs, violate the

constitutional and statutory rights of plaintiffs;

B. Issue a preliminary and permanent injunction against the Defendants and

all those acting in concert prohibiting enforcement of the laws, as applied,

at issue in this action;

C. Award to Plaintiffs reasonable costs, expenses and attorney fees;

E. Award such other and further relief as this Court shall deem just and

reasonable.

Respectfully submitted,

Alphonse
(513) (513)

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

8

 
 Case: 1:13-cv-00501-TSB Doc #: 66 Filed: 12/23/13 Page: 1 of 3 PAGEID #: 1093

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL, et al.

:

:

Plaintiffs,

:

:

vs.

:

:

THEODORE W. WYMYSLO, M.D., et al. :

:

Defendants.

:

Case No. 1:13-cv-501 Judge Timothy S. Black

DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

This Court earlier entered a Temporary Restraining Order in this case as applied to

Plaintiffs Obergefell and Arthur and a similar Order as applied to Plaintiff Michener.

(Docs. 14 and 23). The parties extended these Orders by agreement until final disposition

of this case. (Docs. 16 and 23). Now, upon consideration of Plaintiffs’ Motion for

Declaratory Judgment and Permanent Injunction (Doc. 53), the parties’ responsive

memoranda (Docs. 56 and 62), and the record evidence, the Court has found and

concluded that Plaintiffs’ motion is appropriately granted. (Doc. 56). Consequently,

the Court now enters final judgment of declaratory judgment and permanent injunction.

Specifically, the Court finds that Plaintiffs have established that Ohio Const. Art.

XV, §11 and Ohio Rev. Code. § 3101.01(C) violate rights secured by the Fourteenth

Amendment to the United States Constitution in that same-sex couples legally married in

other jurisdictions who seek to have their out-of-state marriages recognized and accepted

Case: 1:13-cv-00501-TSB Doc #: 66 Filed: 12/23/13 Page: 2 of 3 PAGEID #: 1094
as legal in and by Ohio are denied due process of law when the attendant protections and benefits of their existing marriages are denied by the state and are denied the equal protection of the laws when Ohio does recognize heterosexual marriages from other jurisdictions, even if the heterosexual marriage is of a kind not authorized in Ohio. The evidence demonstrates that there is no state interest sufficient to justify denying same-sex married couples the same recognition of their existing marriages.
Therefore, this Court hereby DECLARES that Ohio Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C) are unconstitutional as applied to Plaintiffs, and that the filing of death certificates on behalf of Plaintiffs in valid same-sex marriages from other jurisdictions, if requested, shall recognize decedents as “married” or “widowed” and shall acknowledge decedents’ “surviving spouses.”
The Court further DECLARES that Ohio Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C) violate the constitutional rights of those same-sex couples married in jurisdictions that authorize same-sex marriage who become clients of Plaintiff Robert Grunn and about whom he reports information regarding their marital status and status as surviving spouses in support of their requests for death certificates.
Specifically, this Court DECLARES that Plaintiff Robert Grunn may, consistent with the Constitution of the United States and this Court’s Final Order, report that a decedent married in a state authorizing same-sex marriage is “married” or “widowed” and report the name of the decedent’s surviving same-sex spouse on an Ohio death certificate he completes in the course of his work as a funeral director in Ohio.
2

Case: 1:13-cv-00501-TSB Doc #: 66 Filed: 12/23/13 Page: 3 of 3 PAGEID #: 1095

Defendants Theodore Wymyslo and Camille Jones, and their officers, agents, and

employees, and those persons in active concert or participation with Defendants who

receive actual notice of this Order, are also PERMANENTLY ENJOINED from

enforcing Ohio Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C), as applied to

Plaintiffs, such that Defendants, and all those acting in concert, are required to issue

permanently to each married Plaintiff a death certificate that records his or her marital

status as “married” or “widowed” and lists the same-sex “surviving spouse” by name,

and Defendants, and those persons in active concert or participation with Defendants who

receive actual notice of this Order, are prohibited from initiating any criminal prosecution

or administrative discipline against Plaintiff Grunn for recording same-sex marriages and

same-sex surviving spouses on the death certificates he completes.

Defendant Dr. Theodore E. Wymyslo is further ORDERED to make a best faith

effort to communicate Notice of this Court’s Final Orders (Docs. 56 & 57) to all persons

within Ohio who assist with completing Ohio death certificates, and Dr. Wymyslo shall

evidence such compliance by filing with this Court an Affidavit by 3/31/14.

IT IS SO ORDERED.

Date: 12/23/13

/s/ Timothy S. Black Timothy S. Black United States District Judge

3

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL, et al.,

:

:

Plaintiffs,

:

:

vs.

:

:

THEODORE E. WYMYSLO, M.D., et al., :

:

Defendants.

:

Case No. 1:13-cv-501 Judge Timothy S. Black

ORDER DENYING THE MOTION TO DISMISS OF DEFENDANT DR. THEODORE WYMYSLO As fully anticipated by all parties, Plaintiff John Arthur died very recently on October 22, 2013. The question now arises whether this lawsuit dies with him. Believing that courts are designed to be places of recourse, and that judges are not to duck legal questions simply because they are difficult or because the initial status quo has changed, this Court determines that this lawsuit is not amenable to dismissal but instead shall proceed to a full and final disposition, in the trial court, before the new year. Procedural Posture On July 19, 2013, James Obergefell and John Arthur, a same-sex couple legally married under the laws of Maryland, filed this civil lawsuit challenging Ohio’s prohibitions against same sex marriages. (Doc. 1). They sought emergency relief from the Court, relating to Mr. Arthur’s future death certificate, on the basis that he was terminally ill with amyotrophic lateral sclerosis and his death was imminent. (Id. at 6). Specifically, they sought a ruling from the Court that the Ohio Department of Vital

Statistics be required to accept a death certificate which identified Mr. Arthur as “married” at the time of his death and listed Mr. Obergefell as his surviving “spouse.” Upon complete briefing and careful analysis, the Court accepted Plaintiffs’ position and entered its Order requiring that Mr. Arthur’s death certificate reflect that truth that he was “married” at the time of his death. The Court found that Ohio’s discrimination against recognizing same sex marriages served no legitimate state purpose, other than to discriminate against gay citizens because of their status, and therefore likely violated the promise of the federal Constitution that “No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. The Court found especially compelling Ohio’s long-standing history of recognizing any and all out-of-state marriages, as long as they were lawful in the state where the marriage was celebrated. The Court pointed out, as examples, Ohio’s willingness to recognize out of state marriages of first cousins and those of minors, even though those unions are not authorized to be performed in Ohio under its marriage laws.
About a month later, on September 3, 2013, Plaintiffs filed a first Amended Complaint, adding the claims of Plaintiff David Michener. (Doc. 24). Mr. Michener raised a similar as-applied challenge concerning the death certificate of his husband, William Ives, who died unexpectedly on August 27, 2013. (Id. at ¶¶ 17, 33). While Mr. Ives awaited cremation, this Court issued its second order requiring Ohio to recognize on his death certificate his same sex marriage, legally performed out of state.
2

On September 26, 2013, Plaintiffs filed a Second Amended Complaint, this
time adding as a plaintiff Robert Grunn, a licensed funeral director in the State of
Ohio.1 (Doc. 33). Mr. Grunn seeks to brings claims challenging the constitutionality
of Ohio’s same sex marriage prohibitions, both on his own behalf, and on behalf of
future clients, who are surviving spouses of deceased same-sex married partners. (Id.)
1 The following allegations appear in Plaintiffs’ Second Amended Complaint (Doc. 33) and the declarations of Mr. Grunn (Doc. 34-1) and Mr. Obergefell (Doc. 48-1). The declarations are appropriately considered in ruling on Dr. Wymyslo’s motion, as “it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
As a funeral director, one of Mr. Grunn’s responsibilities is to originate death certificates. To do this, he collects personal information from the next of kin of the deceased, including whether the deceased was married, single, widowed, or divorced; and, if married, he collects the surviving spouse’s name. Mr. Gunn then he enters the information into the Electronic Death Registration System (“EDRS”) maintained by the Ohio Department of Health.
Mr. Grunn provides his clients with certified copies of their loved ones’ death certificates, which are used to, among other things, receive life insurance payouts, claim social security survivors benefits, administer wills, and deed automobiles, real estate, and other property. Due to grief and inexperience with death, his clients often do not realize the importance of death certificates until after he has filed them and returned certified copies.
Mr. Grunn must sign every death certificate he originates, and he knows that if he purposely makes a false statement within a death certificate he may face criminal penalties.
Nevertheless, Mr. Grunn declares under oath that the next time he originates a death certificate for a decedent who was legally married to a same-sex spouse in another state, he intends to list the decedent as “married” and to list the surviving partner as the decedent’s “spouse.”
By doing so, Mr. Grunn fears that Ohio will initiate a criminal prosecution of him for purposely making a false statement on a death certificate.
Mr. Grunn files approximately 40 death certificates per month, and his business is growing. He has already served two same-sex couples married in other jurisdictions, including Mr. Obergefell and Mr. Arthur, and Mr. Obergefell plans to refer his friends to Mr. Grunn in the future. Mr. Grunn is gay himself, and he runs his business from the previous site of Carol’s On Main, a gay-friendly bar, apparently well-known within the Cincinnati gay community. (See Docs. 33, 34-1, and 48-1).
3

ANALYSIS Shortly after the death of John Arthur, the state Defendant has moved to dismiss the claims against him. The state argues that Plaintiff Grunn lacks authority to pursue this lawsuit, either on his own behalf or on behalf of future same sex marriage widows or widowers. The legal attack raises hard questions regarding sophisticated legal concepts like standing and ripeness. In simplified sum, Defendant argues that now that Messers. Arthur and Ives have died, there exists no live controversy for the Court to adjudicate and that Mr. Grunn’s attempt to take up the challenge is without legal basis. Upon close review and careful analysis, the Court disagrees. A. First-Party Claim A plaintiff cannot sue based on “a generalized grievance against [assertedly] illegal government conduct[.]” United States v. Hayes, 515 U.S. 737, 743 (1995). “The rule against generalized grievances applies with as much force in the equal protection context as in any other.” Id. at 743-44 (recognizing that the injury from discrimination relates to the person actually denied equal treatment); see also Parker v. Ohio, 263 F. Supp. 2d 1100, 1103 (S.D. Ohio 2003). Therefore, to properly plead a first-party claim on his own behalf, Mr. Grunn must allege that he himself has actually suffered the deprivation of constitutional rights alleged in the Complaint. See, e.g., LaFountain v. Harry, 716 F.3d 944, 950 (6th Cir. 2013); Loesel v. City of Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012). On the record before this Court, Mr. Grunn has not met these requirements as he fails to plead a violation of his own right to equal protection of law, or any other claim
4

based on a violation of his own constitutional rights. The only claim brought in the
Second Amended Complaint is a 42 U.S.C. § 1983 claim based on the alleged violation
of the constitutional rights of same-sex couples married in other jurisdictions. Mr. Grunn
is not asking for relief that will remedy any alleged unconstitutional treatment that he
himself has suffered at the hands of anyone acting under color of state law.
Consequently, Mr. Grunn has failed to meet pleading requirements to state a claim
on his own behalf, and his attempt to do so must be dismissed.
B. Third-Party Claim But Mr. Grunn also seeks to bring claims on behalf of his clients and future
clients, whose rights to equal protection of law (and to due process of law) are allegedly
violated by Ohio’s prohibitions against recognition of same sex marriages.
1. Article III Standing “The doctrine of standing serves to identify those disputes which are appropriately
resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 154 (1990).
The doctrine is an evolving body of law with its “core component” being “the case-or-
controversy requirement of Article III,” but “some of its elements express merely
prudential considerations that are part of judicial self-government.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 559 (1992). As Justice Scalia explained in Lujan:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result
5

of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61. Mr. Grunn satisfies all three of these elements.
a. Injury in Fact Mr. Grunn alleges that the injury he endures is a well-founded fear of criminal prosecution. Fear of criminal prosecution is one category of injury recognized under the standing doctrine, and “one does not have to await the consummation of threatened injury to obtain preventative relief.” Babbit v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (internal citation omitted). More specifically, according to the Supreme Court, “[i]t is not necessary that the plaintiff first expose himself to actual arrest or prosecution to be entitled to challenge the statute that he claims deters the exercise of his constitutional rights.” Id. (internal citation omitted). Instead, to state a claim based on fear of criminal prosecution, Mr. Grunn must show that he was or is threatened by prosecution, or that a prosecution is likely, or that it is at least remotely possible. Id. at 298-99. In Babbit, the Supreme Court determined that the farm worker plaintiffs had standing to challenge a state statute criminalizing the use of false statements to dissuade consumers from buying products, even though the plaintiffs had no intention of making false statements, but had engaged in consumer publicity campaigns in the past and intended to continue boycott activities in the future. Id. at 301-02. The Court found standing on the theory that the potential for prosecution impeded the full exercise of the
6

workers’ First Amendment rights -- despite the government’s insistence that the “criminal penalty provision ha[d] not yet been applied and may never be.” Id. at 302. The Court found that the threat of criminal prosecution was “not imaginary or wholly speculative” and that “the State ha[d] not disavowed any intention of invoking the criminal penalty provision.” Id.
The same is true here. Mr. Grunn fears prosecution under a statute that the State of Ohio has declined to disavow the intention to enforce against him. The statute giving rise to the injury specifically targets funeral directors, Mr. Grunn has submitted evidence showing perceptible harm, his prosecution is possible, and he has expressed the intent to continue engaging in conduct that could trigger a prosecution. In fact, because of Mr. Grunn’s expressed intent to continue recognizing out-of-state gay marriages on death certificates, the threat he faces is even less “imaginary or wholly speculative” than the one faced by the farm workers in Babbit, who had no intention of violating the statute in question. Moreover, that the threat Mr. Grunn faces is neither imaginary nor speculative is also demonstrated by the fact that Defendant Dr. Camille Jones shares the same fear of prosecution. (Doc. 10 at ¶¶ 7, 11).
Thus, Mr. Grunn has evidenced the first prerequisite to Article III standing. b. Fairly Traceable to Challenged Action
Standing also requires “a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560.
7

Mr. Grunn’s fear of prosecution is fairly traceable to Dr. Wymyslo. Mr. Grunn has a duty to originate death certificates by collecting the personal information of decedents and then registering that information with the Ohio Department of Health. Ohio Rev. Code § 3705.16(B). If he “purposefully make[s] any false statement” on a death certificate, he could be prosecuted and, if convicted, incarcerated for up to five years and fined up to $10,000. Ohio Rev. Code. §§ 3705.29(A)(1), 3705.99(A). Under Ohio law, “all prosecutions and proceedings by the Department of Health for the violation of section[…] 3705.29[…] of the Revised Code[…] shall be instituted by the director of health,” i.e., Dr. Wymyslo. Ohio Rev. Code § 3701.57.
Mr. Grunn’s fear of prosecution is also fairly traceable to Ohio’s marriage laws, which are the basis for his belief that Dr. Wymyslo will see his recognizing of out-ofstate gay marriages on death certificates as purposefully making false statements on those death certificates in violation of Ohio law.
Thus, Mr. Grunn has met the second prerequisite for Article III standing. c. Likely to be Redressed
Finally, to accomplish Article III standing, Mr. Grunn’s injury must be capable of being redressed by this Court. Lujan, 504 U.S. at 561. This requirement is satisfied because if this Court were to make its temporary injunction permanent, and issue a declaratory judgment setting out Mr. Grunn’s rights with regard to filling out death certificates for decedents who were in out-of-state same-sex marriages, his fear of prosecution would disappear (if sustained upon appeal).
8

Based on the foregoing, Mr. Grunn has adequately satisfied all the Article III standing requirements.
2. Third-Party Standing “Ordinarily, one may not claim standing […] to vindicate the constitutional rights of some third party.” Singleton v. Wulff, 428 U.S. 106 (1976). However, this general rule can be overcome where a plaintiff (1) “shows that he himself is injured by its operation,” Barrows v. Jackson, 346 U.S. 249, 255 (1953), (2) “has a close relationship with the person who possesses the right,” and (3) where “there is a hindrance to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U.S. 125, 129130 (2004). As established above, Mr. Grunn has demonstrated a cognizable injury, and, as discussed below, he is able to satisfy the remaining two elements as well.
a. Close Relationship to Possessors of Right The reason courts require “a close relationship” is to ensure that the challenger has the “appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation.” Id. at 129. The question thus arises whether Mr. Grunn has the appropriate incentive to challenge Ohio’s same sex marriage ban and whether he will pursue that challenge appropriately and zealously. That is not a hard question, here. In Craig v. Boren, 429 U.S. 190 (1976), the Supreme Court found that a licensed vendor of 3.2% beer properly possessed third-party standing to vindicate the rights of all 18 to 21 year-old men who might have wanted to purchase beer from her. Much like Mr. Grunn, she was “obliged to either heed the statutory discrimination […] or disobey the
9

statutory command and suffer […] sanctions.” Id. at 194. Such challengers are “entitled to assert those concomitant rights of third parties that would be diluted or adversely affected should [the challenger’s] constitutional challenge fail and the statutes remain in force.” Id. at 195.
In challenging the close relationship alleged by Plaintiffs, Defendants rely on Kowalski’s holding that “no relationship at all” existed between the putative plaintiff attorneys in that case and the “hypothetical future clients” whose rights they were seeking to represent. 543 U.S. at 125, 131. Kowalski and similar cases have little application to the case at hand, however, as the parties whose rights Mr. Grunn is attempting to vindicate are not “hypothetical future clients,” but rather are members of a specific population from a community of which Mr. Grunn himself is a part, and other members of which have retained his services in the past, and additional members of which will without question continue to retain his services in the future. At the time of the filing of the Second Amended Complaint, Mr. Grunn alleged that he had already served at least one same-sex couple married in another jurisdiction, and the fact that Mr. Arthur and Mr. Obergefell have retained him since that time further evidences the obvious likelihood that similarly situated couples will continue to do so in the future.
Mr. Grunn’s clients rely on him to originate and register death certificates. They do not have access to the state EDRS, nor do they have the statutory authority to register deaths with the local registrar of vital statistics. Mr. Grunn’s clients are completely reliant on him to fulfill this function. The services of a funeral director, unlike those of an attorney, are services every one of us will inescapably require one day. The attorneys
10

in Kowalski, however, could not demonstrate a close relationship (or indeed any relationship) with hypothetical future clients who might never retain their services at all. Conversely, Mr. Grunn can evidence a close relationship with future clients, given that he is acquainted with same-sex couples legally married in other states who wish to have their Ohio death certificates reflect their marriages, he has already worked with multiple such clients professionally, Mr. Obergefell will be referring his friends to Mr. Grunn, and Mr. Grunn is a gay man running his business from the site of a former gay bar. Clearly, Mr. Grunn’s relationship to this constituency is neither prospective nor hypothetical but rather current and certain to continue.
Given his own position as both a member of the gay community and a professional serving it, Mr. Grunn has not only a reasonable certainty that similarly situated clients will inevitably continue to retain his services, but also a clear personal investment in challenging the unconstitutional discrimination alleged in this case “with the necessary zeal and appropriate presentation.” Kowalski, 543 U.S. 125 at 129. In fact, Mr. Grunn is uniquely situated to be responsive to the very concerns the “close relationship” requirement is designed to address.
b. Hindrance to Possessors’ Ability to Protect Their Own Interests For Mr. Grunn to have third-party standing, his clients must be hindered in some way from “litigating their rights themselves.” Smith v. Jefferson Cnty. Bd of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011). If there is some “genuine obstacle” to a third party’s own standing, “the third party’s absence from court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is
11

in court becomes by default the right’s best available proponent.” Singleton, 428 U.S. at 116.
In Craig, the obstacle faced by the affected class was their fluid membership – the young men lost their live claims upon turning twenty-one. 429 U.S. at 194. Thus, “if the assertion of the right is to be representative […] there seems little loss in terms of effective advocacy from allowing its assertion by [the licensed vendor].” Id. In other words, the obstacle was that the first-party claims were “imminently moot,” Smith, 641 F.3d at 209, just as they are here.
In the Second Amended Complaint, Mr. Grunn explains that he entered the case because “[b]y approaching the issue through his perspective, there [would] be no potential mootness argument that could stop the litigation upon the death of John Arthur.” (Doc. 29 at 2). This is a recognized obstacle to an injured party’s ability to vindicate his or her own constitutional rights. See, e.g., Craig, 429 U.S. at 194. Moreover, Mr. Arthur was exceptional in his ability to bring this suit. He was dying of a terminal illness, and his slow decline allowed him and Mr. Obergefell to thoughtfully forecast, plan, and litigate their rights to be treated equally on the death certificate.
The second-added Plaintiff, Mr. Michener, presents a more common case in that he was surprised (actually stunned) by his husband’s death. Mr. Michener was only able to vindicate his rights on such short notice because there was a live case he could join, lawyers who had prepared the issue, and a temporary restraining order already in place. Had that not been the case, Mr. Michener would have had to find an attorney who could prepare the necessary briefing, file a motion for a temporary restraining order, and obtain
12

a temporary restraining order all within the few hours while his husband’s body waited to be cremated. The need to file a lawsuit to ensure that a loved one’s death certificate accurately reflects their marriage is an incredible burden to place on grieving spouses. Thus with respect to the hindrance requirement, Mr. Grunn is uniquely situated to be responsive to the very concerns that third-party standing is designed to address.
All said and done, Mr. Grunn has third party standing to proceed as a Plaintiff in this lawsuit. C. Ripeness
Defendant also claims that this lawsuit must be dismissed because it is not “ripe.” To determine if a claim is ripe, three factors are considered: (1) the likelihood that the harm alleged will ever come to pass; (2) whether the factual record is sufficiently developed to allow for adjudication; and (3) hardship to the parties if judicial review is denied. Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002) (citation omitted). Mr. Grunn’s claim satisfies all three factors. First, Mr. Grunn is an active member of the gay community, his business is publicly gay friendly, and he has already served two same-sex couples who were married in states authorizing same-sex marriages. Moreover, Mr. Obergefell will be referring married same-sex couples to Mr. Grunn. Thus, the harm claimed is not “speculation regarding future harm” but rather is already present, and there also exists a clear and present risk of further harm. Second, the factual record is sufficiently developed here to address the issues raised by Mr. Grunn. His duties are already detailed in the pleadings, and they have also
13

been raised by Defendant Jones, who works with him and has expressed some of the same concerns.
Finally, if judicial review is denied, the parties will need to scramble to litigate in a rushed manner when the next same-sex married couple has a spouse die and must seek a death certificate through a funeral director. There would be a significant hardship for Mr. Grunn to litigate this issue when the next grieving surviving spouse retains his services, as that client will be in distress and facing an urgent need to secure a death certificate and dispose of his or her loved one’s remains. Moreover, in the absence of a live case with a temporary restraining order already in place, obtaining the necessary relief within the short period of time in which a death certificate must issue may well be logistically impossible.
In NRA v. Magaw, 132 F.3d 272, 286 (6th Cir. 1997), the Sixth Circuit held that there was adequate hardship to sustain ripeness where “plaintiffs, for all practical purposes, are coerced into a particular course of conduct by the prospect of heavy civil and criminal penalties that might be visited upon them” if they did not comply with the challenged statute. In the same way, Mr. Grunn is currently being coerced to leave valid same-sex marriages off death certificates because of the prospect of criminal sanctions.
For these reasons, Mr. Grunn’s claim is ripe. D. Declaratory Judgment Jurisdiction
Defendant argues further that the Court, in its discretion, should simply avoid resolving the issues presented.
14

It is true that a court may decline to “entertain an action under the Declaratory
Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional
prerequisites.” Travelers Indem. Co. v. Bowling Green Professional Assoc., PLC, 495
F.3d 266, 271 (6th Cir. 2007). In this context, when deciding whether to exercise
jurisdiction, the following factors are considered:
(1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of ‘procedural fencing’ or ‘to provide an arena for a race for res judicata’; (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective.
Grand T.W.R. Co. v. Consolidated Rail Corp., 746 F.2d 323, 326 (6th Cir. 1994).
As has been established, a declaration of same-sex married couples’ rights to
recognition on death certificates would dispose of Mr. Grunn’s fear of prosecution
completely. The record shows that he faces a real problem that has surfaced in his
practice in the past and will inevitably resurface in the future, that he has standing to
bring his claim, and that this case is ripe. Although this case presents a potential conflict
between federal and state law, it does not represent any improper encroachment upon
state jurisdiction as Mr. Grunn is seeking vindication of federal constitutional rights appropriately enforced in federal court.2 And, there is no better or more effective remedy.
2 Despite the fact that voters may support a given law, rights protected by the U.S. Constitution can never be subordinated to the vote of the majority. While at times this may seem unfair, especially when deeply emotional issues are involved, indeed it is the fairest, and most deeply rooted, of all of this Nation’s rich traditions.
15

As a result, the Court appropriately exercises its discretion to entertain Mr.

Grunn’s suit for a declaratory judgment.

CONCLUSION

Accordingly, based on the foregoing, Dr. Wymyslo’s Motion to Dismiss (Doc. 38)

is hereby DENIED. The Court anticipates that this case will be ripe for full and final

resolution in late December 2013.

IT IS SO ORDERED.

Date: 11/1/13

s/ Timothy S. Black Timothy S. Black United States District Judge

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 Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 1 of 13 PAGEID #: 206

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL and JOHN ARTHUR C/O Gerhardstein & Branch, LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202
and
DAVID BRIAN MICHENER C/O Gerhardstein & Branch, LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202
and
ROBERT GRUNN C/O Grunn Funeral Home 825 Main Street Cincinnati, Ohio 45202
Plaintiffs,
vs.
THEODORE E. WYMYSLO, M.D. 246 N. High Street Columbus, OH 43215 In his official capacity as the Director of the Ohio Department of Health
and
CAMILLE JONES, M.D. 1525 Elm Street, 4th floor Cincinnati, OH 45202 In her official capacity as Registrar, City of Cincinnati Health Department Office of Vital Records
Defendants.

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Case No. 13-cv-501

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Judge Timothy S. Black

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SECOND AMENDED

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COMPLAINT FOR

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TEMPORARY RESTRAINING

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ORDER AND DECLARATORY

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AND INJUNCTIVE RELIEF

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Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 2 of 13 PAGEID #: 207
I. PRELIMINARY STATEMENT 1. This civil rights case challenges as unconstitutional the application of the Ohio statute and state constitutional amendment that deny legal recognition in Ohio to the marriages of same-sex couples who are married in one of the many states and numerous foreign countries where same-sex marriages are legal. The Obergefell-Arthur plaintiffs, for example, have been in a committed relationship for over twenty years. John Arthur suffers from debilitating ALS disease and is currently a hospice patient. Following the U.S. Supreme Court’s historic decision United States v. Windsor, the couple traveled to Maryland and was married in accordance with the laws of that state. Now back in Ohio, their marriage is not recognized by the state of Ohio for any purpose. Meanwhile, the marriages of opposite-sex couples that are legal in other states but would not be allowed in Ohio (e.g., marriages of first cousins or a young partner) are routinely accepted in Ohio if those marriages are legal in the state where they are celebrated. This recognition of opposite-sex marriages but rejection of same-sex marriages that do not meet the Ohio criteria for marriage violates rights secured to the plaintiffs by the United States Constitution. Plaintiffs seek an order requiring defendants to issue a death certificate that reflects their status as married and their survivor as the surviving spouse. Plaintiff Robert Grunn is a licensed funeral director and has a statutory duty to serve as an accurate and truthful reporter of personal facts with respect to applications for death certificates. He sues on his own behalf and on behalf of his same-sex married clients in order that samesex marriages be properly recognized on Ohio death certificates.
2

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II. JURISDICTION AND VENUE 2. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C. §1331 and §1343(3) and (4). Venue is proper under 28 U.S.C. §1391.
III. PARTIES
3. Plaintiff James Obergefell is a resident of Cincinnati, Ohio. He is married to John Arthur.
4. Plaintiff John Arthur is a resident of Cincinnati, Ohio. He is married to James Obergefell.
5. Plaintiff David Michener is a resident of Wyoming, Ohio. He was married to William Herbert Ives. Mr. Ives died at University Hospital in Cincinnati on August 27, 2013.
6. Plaintiff Robert Grunn is a funeral director and embalmer licensed by the State of Ohio. He is the managing partner at the Grunn Funeral Home at 825 Main Street in Cincinnati, Ohio, 45202 and at the Grunn Lusain Memorial Center at 910 Patterson Blvd in Dayton, OH 45402.
7. Defendant Theodore E. Wymyslo, M.D., is the Director of the Ohio Department of Health. In that capacity he is responsible for overseeing the administration of all statutes and regulations that relate to the State of Ohio’s system for recording vital statistics, including but not limited to the issuance of death certificates. Defendant Wymsylo is sued in his official capacity for injunctive relief only.
8. Defendant Dr. Camille Jones, Local Registrar, Cincinnati Health Dept. Office of Vital Records, is responsible for filing death certificates and ensuring the personal
3

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information on the death certificate is accurate. Defendant Jones is sued in her official capacity for injunctive relief only.
V. FACTS A. James and John Are Married in Maryland
9. James and John have been in a committed relationship and have been Cincinnati residents for more than twenty years.
10. In 2011, John was diagnosed with amyotrophic lateral sclerosis (ALS). The disease has caused progressive and severe muscle deterioration. The disease has no known cure. It is fatal.
11. John is currently a hospice patient. 12. On July 11, 2013, friends and family helped finance a trip by James and John to Maryland. They traveled in a special jet equipped with the medical equipment and a medical staff to serve John’s needs. 13. They were married in the jet as it sat on the tarmac at the Baltimore airport in Anne Arundel County, Maryland. 14. They returned to Cincinnati that same day. B. David and William were Married in Delaware 15. David Michener and William Ives were married in Delaware on July 22, 2013. Their marriage is legally recognized in Delaware. 16. They had been together for eighteen years and they have three adopted children. 17. William died unexpectedly of natural causes at University Hospital in Cincinnati, Ohio on August 27, 2013.
4

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18. Surviving spouse David Michener requested a death certificate that reflected William’s status as “married” and listed David as the surviving spouse.
19. On September 3, 2013 this Court issued a temporary restraining order (Doc. 23) restraining defendants from “accepting a death certificate for William Herbert Ives that does not list his status at the time of death as ‘married’ and his ‘surviving spouse’ as David Michener.”
20. A death certificate consistent with this Court’s order has since been issued and the remains of Mr. Ives have since been cremated.
21. Plaintiff Michener opposes any effort that defendants may take in the future to modify or alter the death certificate of his spouse, Mr. Ives.
22. Further, should Plaintiff Michener die without remarrying he seeks the opportunity to have his marital status listed on his death certificate as “widowed.” C. The Marriages of James and John and of David and William are not Recognized
in Ohio 23. The marriage of James and John is legally recognized in Maryland. 24. The marriage of David and William is legally recognized in Delaware. 25. Their marriages are also recognized by the federal government by virtue of the
decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013). 26. Their marriages are not recognized in Ohio. 27. Ohio law prohibits legal recognition of the marriage of James and John. It also
prohibits legal recognition of the marriage of David and William. Ohio Rev. Code. § 3101.01(C )(2) states, “Any marriage entered into by persons of the same-sex in any
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other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”
28. The Ohio constitution also prohibits recognition of the marriages of James and John and of David and William. 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.” D. Marriages of Opposite-Sex Couples are Treated Differently
29. Opposite-sex couples do face restrictions in Ohio on who may marry. ORC §3101.01(A) states, “Male persons of age eighteen years and female persons of the age of sixteen years, not nearer of kin than second cousins…may be joined in marriage.” (emphasis added). But the validity of their marriages is determined by the law of the state where their marriage was celebrated. Mazzolini v. Mazzolini, 168 Ohio St. 357, 358 (Ohio Sup. Ct. 1958) (Marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of Ohio statute to contrary).
30. More than 1,000 federal benefits, privileges and responsibilities are impacted by marital status. Opposite-sex couples who reside in Ohio and not in the jurisdictions where they celebrated their legal marriages will be entitled to all of those federal benefits even if (e.g., due to kinship or age) their marriages would not have been recognized in Ohio had they attempted to marry in Ohio. Same-sex married couples including Plaintiffs who do not reside in jurisdictions where they celebrated their legal marriages may be denied many of those federal benefits solely because they live in Ohio. Many
6

Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 7 of 13 PAGEID #: 212
state and private employer benefits will also be denied to same-sex couples married legally in other jurisdictions and now residing and/or working in Ohio.
31. The different treatment of same-sex marriages celebrated in other jurisdictions from opposite-sex marriages celebrated in other jurisdictions is not supported by a legitimate state interest and imposes severe harm on same-sex couples including Plaintiffs James and John and Plaintiff David Michener who was married to William Ives(now deceased). E. Need for Injunction
32. James and John have been in love for more than twenty years. They very much want the world to officially remember and record their union as a married couple.
33. One very personal reflection of the harm imposed by defendants is evident from the death record. Unfortunately John is likely to die soon. If John dies first, the death record should record his “marital status at time of death” as “married.” Unless this Court acts, his death record, consistent with Ohio law, will list his status as unmarried. That form should also record James as the “surviving spouse”. Unless this Court acts, the death record will be blank for surviving spouse. That is, unless this court acts, the permanent death records for James and for John will not reflect their marriage at all. Opposite-sex couples married in other jurisdictions under circumstances otherwise not permitted in Ohio are treated completely differently. Their marriages will be reflected as valid and recognized on the death certificates of these opposite-sex couples.
34. These same issues are present for David Michener. At the time he applied for the TRO, his husband has died and he urgently needed to bring closure to the family in a manner that respected their marriage and the wishes of the decedent to be cremated. A
7

Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 8 of 13 PAGEID #: 213
death certificate was needed in order to proceed with a cremation. That death certificate that was issued consistent with this Court’s order should not later be altered or amended to delete or eliminate the reference to their marriage or to Mr. Michener’s status as a surviving spouse.
35. Defendant Jones is responsible for keeping all death certificates in Cincinnati, Ohio. She supplies forms and instructions for filling out forms. Ohio law requires that she insist that each death certificate, when presented for filing, be completed in accordance with Ohio law.
36. Defendant Wymyslo is responsible for overseeing the administration of all statutes and regulations that relate to the State of Ohio’s system for recording vital statistics, including but not limited to the issuance of death certificates.
37. Because of Ohio’s OH Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C) (2) prohibitions on same sex marriage, Defendant Jones requires a person filling out the death certificate of a decedent who is married to a person of the same sex to indicate the decedent is not married and to not include the spouse’s name on the certificate.
38. Upon information and belief, were it not for this Court’s temporary restraining order, Defendant Jones would not allow John’s death certificate to indicate he was married and that his spouse was James because of the state laws.
39. Before this Court issued the Order, Doc. 23, Defendant Jones received a request to issue a death certificate reflecting the death of William Herbert Ives. She then requested through her counsel that she be given direction from this court on how to respond to this request. This Court subsequently issued the temporary restraining order.
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Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 9 of 13 PAGEID #: 214
40. There is no adequate remedy at law. James and John are suffering irreparable harm. David Michener is also suffering irreparable harm. There is no harm to the state or local governments by granting an injunction prohibiting enforcement of the challenged statute and Ohio constitutional amendment as applied to the plaintiffs with respect to the issuance of death certificates. The harm to plaintiffs is severe. The public interest is clearly served by this court acting to order recognition in Ohio of same-sex marriages celebrated in other jurisdictions consistent with the manner in which Ohio treats similarly situated opposite-sex couples as applied to the issuance of death certificates. Only prompt action by this federal court ordering declaratory and injunctive relief will serve the public interest. F. Plaintiff Robert Grunn (Funeral Director) and Need for Declaratory Judgment
41. As a licensed funeral director, pursuant to R.C. §3705.16, Plaintiff Robert Grunn registers deaths and provides personal information regarding the decedent to the state for inclusion on the death certificate. Plaintiff Grunn has a duty to provide accurate and truthful information.
42. Plaintiff Grunn signs death certificates as a funeral director. 43. Plaintiff Grunn serves a wide variety of clients, including same-sex couples. 44. Some of the same-sex couples whom he serves have been married in jurisdictions that authorize same-sex marriage. 45. In the future he will continue to serve same-sex couples including couples that have been married in jurisdictions that recognize same-sex marriage.
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46. Based on his experience with married same-sex couples, he knows it is important that he record their marriage status as “married” or “widowed” and that any surviving spouse be listed by name as the surviving spouse.
47. Among his duties as an Ohio funeral director, Mr. Grunn collects the personal and statistical information of decedents and reports them to the local registrar of vital statistics. Ohio Rev. Code § 3705.16(B). In fulfilling this duty, funeral directors are prohibited from “purposely mak[ing] any false statement.” Ohio Rev. Code § 3705.29(A)(1). A violation of this prohibition could lead Mr. Grunn to be fined up to ten thousand dollars or incarcerated for up to five years, or both. Ohio Rev. Code § 3705.99.
48. By serving as a plaintiff in this action, Mr. Grunn is seeking a declaratory judgment clarifying that it is consistent with the law to list a decedent married to a samesex partner in another jurisdiction that authorizes same-sex marriage as “married” or “widowed” on an Ohio death certificate and that it is consistent with the law to list on that death certificate the name of any surviving spouse.
49. By serving as a plaintiff in this action, Mr. Grunn is also representing the interests of the same-sex couples married in jurisdictions that recognize their marriages and who will be his clients and customers now and in the future. On their behalf, as their funeral director, Plaintiff Grunn seeks to secure the right to list the marital status of the decedent as “married” (or, if appropriate, as “widowed”) and report the name of the survivor as the “surviving spouse” on the Ohio death certificates for these clients.
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Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 11 of 13 PAGEID #: 216
VI. CLAIM FOR RELIEF 42 U.S.C. §1983 - United States Constitution 50. Defendants, acting under color of law, have violated rights secured to the plaintiffs by the First and Fourteenth Amendments to the United States Constitution including the right of association, the right to due process of law, and the right to equal protection under the law. Specifically Defendants have failed, as applied to the plaintiffs married in jurisdictions that authorize same-sex marriage, to issue death certificates listing said plaintiffs as “married” (or, if applicable, “widowed”) and listing the survivor on the death certificate as the “surviving spouse.” Plaintiffs reserve the right to raise additional issues should that be necessary in subsequent complaints or lawsuits as circumstances warrant and shall not by virtue of pursuing this as applied challenge be precluded from doing so.
VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
A. Issue a declaratory judgment that the statute and Ohio Constitutional provision at issue in this case, which prohibit recognition of the same-sex marriages of plaintiffs James Obergefell and John Arthur as well as the same-sex marriage of David Michener and William Ives as applied to their requests for death certificates, violate the constitutional rights of these plaintiffs. Specifically, this court should declare that any of these plaintiffs who die in Ohio shall be entitled to a death certificate listing his status as “married” or “widowed” as appropriate and listing the person who survives from that marriage as the surviving spouse on an Ohio death certificate of the decedent; 11

Case: 1:13-cv-00501-TSB Doc #: 33 Filed: 09/26/13 Page: 12 of 13 PAGEID #: 217
B. Issue a declaratory judgment that the statutory and Ohio Constitutional provisions at issue in this case, violate the constitutional rights of those same-sex couples married in jurisdictions that authorize same-sex marriage who become clients of Plaintiff Robert Grunn and about whom he reports information regarding their marital status and status as surviving spouses in support of their requests for death certificates. Specifically, this court should declare that Plaintiff Robert Grunn may, consistent with the constitution, report that a decedent married in a state authorizing same-sex marriage is “married” or “widowed” and report the name of any surviving spouse on an Ohio death certificate he completes in the course of his work as a funeral director in Ohio.
C. Issue a preliminary and permanent injunction against the Defendants and all those acting in concert requiring that they issue to each married plaintiff death certificates that record their marital status as “married” or “widowed” and that list any survivor as the “surviving spouse.” Said injunction shall include a requirement that Defendants Wymyslo and Jones issue directives to local registrars, funeral homes, coroners and others who assist with the completing of Ohio death certificates explaining their duties under the orders of this Court;
D. Award to Plaintiffs reasonable costs, expenses and attorney fees; E. Award such other and further relief as this Court shall deem just and reasonable.
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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/ Alphonse A. Gerhardstein Alphonse A. Gerhardstein # 0032053 Trial Attorney for Plaintiffs
Jennifer L. Branch #0038893 Jacklyn Gonzales Martin #0090242 Gerhardstein & Branch Co. LPA Attorneys for Plaintiffs 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 (513) 621-9100 (513) 345-5543 fax agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs

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 Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 1

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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 06, 2014

Ms. Christy L. Anderson Bryan Cave 1700 Lincoln Street Suite 4100 Denver, CO 80203
Ms. Sara Bartel Morrison & Foerster 425 Market Street San Francisco, CA 94131
Mr. Joshua A. Block ACLU 125 Broad Street 18th Floor New York, NY 10004
Mr. Carmine D. Boccuzzi Jr. Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006
Mr. Joseph Paul Bowser Arent Fox 1717 K Street, N.W. Washington, DC 20036
Mr. David Boyle P.O. Box 15143 Long Beach, CA 90815
Mr. Kyle James Bristow Law Office

Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 2
P.O. Box 1954 Clarkston, MI 48347
Mr. George David Carter Jr. Innovista Law 1200 18th Street, N.W. Suite 700 Washington, DC 20036
Mr. Hunter Thompson Carter Arent Fox 1675 Broadway New York, NY 10019
Mr. Andrew John Davis Folger Levin 199 Freemont Street 20th Floor San Francisco, CA 94105
Ms. Deborah Jane Dewart Law Office 620 E. Sabiston Drive Swansboro, NC 28539
Alexander Dushku Kirton & McConkie 60 E. South Temple Suite 1800 Salt Lake City, UT 84111
Ms. Felicia H. Ellsworth Wilmer Hale 60 State Street Boston, MA 02109
Mr. Carl H. Esbeck National Association of Evangelicals Ninth & Conley Streets 203 Hulston Hall Columbia, MO 65211
Mr. Thomas Molnar Fisher Office of the Attorney General of Indiana 302 W. Washington Street

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Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 3
Fifth Floor Indianapolis, IN 46204-0000
Mr. Mark Christopher Fleming Wilmer Hale 60 State Street Boston, MA 02109
Mr. Sean Robert Gallagher Polsinelli Shughart 1515 Wynkoop Street Suite 600 Denver, CO 80202
Mr. Alphonse A. Gerhardstein Gerhardstein & Branch 432 Walnut Street Suite 400 Cincinnati, OH 45202
Mr. Alan M. Gershel Thomas M. Cooley Law School 2630 Featherstone Road Auburn Hills, MI 48326
Ms. Suzanne B. Goldberg Columbia University School of Law 435 W. 116th Street New York, NY 10027
Ms. Marcia D. Greenberger National Women's Law Center 11 Dupont Circle, N.W. Suite 800 Washington, DC 20036
Mr. R. Shawn Gunnarson Kirton & McConkie 60 E. South Temple Suite 1800 Salt Lake City, UT 84111
Mr. Jyotin R. Hamid Debevoise & Plimpton 919 Third Avenue New York, NY 10022

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Ms. Kristin M Heyse Office of the Attorney General of Michigan P.O. Box 30758 Lansing, MI 48909
Mr. Lawrence J. Joseph Law Office 1250 Connecticut Avenue Suite 200 Washington, DC 20036
Ms. Stephanie A. Joyce Arent Fox 1717 K Street, N.W. Washington, DC 20036
Ms. Roberta A. Kaplan Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019
Mr. Daniel McNeel Lane Jr. Akin Gump 300 Convent Street Suite 1500 San Antonio, TX 78205
Mr. Aaron D. Lindstrom Office of the Michigan Attorney General P.O. Box 30212 Lansing, MI 48909
Mr. Paul Benjamin Linton Law Offices 921 Keystone Avenue Northbrook, IL 60062-0000
Mr. Christopher Dowden Man Chadbourne & Parke 1200 New Hampshire Avenue, N.W. Suite 300 Washington, DC 20036-0000
Ms. Susan Baker Manning

Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 5
Bingham McCutchen 2020 K Street, N.W. Washington, DC 20006
Ms. Ria Tabacco Mar NAACP Legal Defense & Educational Fund 40 Rector Street Fifth Floor New York, NY 10006
Ms. Emily J. Martin National Women's Law Center 11 Dupont Circle, N.W. Suite 800 Washington, DC 20036
Ms. Mary Elizabeth McAlister Liberty Counsel PO Box 11108 Lynchburg, VA 24506
Ms. Erin Elizabeth Mersino Thomas More Law Center P.O. Box 393 Ann Arbor, MI 48106
Mr. Jonathan Benjamin Miller Office of the Attorney General of Massachusetts 1 Ashburton Place Boston, MA 02108
Ms. Dina Bernick Mishra Wilmer Hale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Mr. Kenneth Marc Mogill Mogill, Posner & Cohen 27 E. Flint Street Second Floor Lake Orion, MI 48362-0000
Mr. Jeffrey Hunter Moon United States Conference of Catholic Bishops 3211 Fourth St., N.E.

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Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 6
Washington, DC 20017
Mr. Michael F. Moses United States Conference of Catholic Bishops 3211 Fourth St., N.E. Washington, DC 20017
Ms. Dana M. Nessel Nessel Kessel 645 Griswold Street Detroit, MI 48226
Mr. Nicholas M. O'Donnell Sullivan & Worcester One Post Office Square Boston, MA 02109
Mr. William Jeffery Olson Law Office 370 Maple Avenue, W. Suite 4 Vienna, VA 22180-5615
Mr. Matthew Edwin Pepping Akin Gump 300 Convent Street Suite 1500 San Antonio, TX 78205
Ms. Nicole Susan Phillis Munger, Tolles & Olson 355 S. Grand Avenue 35th Floor Los Angeles, CA 90071
Anthony R. Picarello Jr. The Becket Fund for Religious Liberty 1350 Connecticut Avenue, N.W. Suite 605 Washington, DC 20036-0000
Ms. Diana Raimi Jaffe, Raitt, Heuer & Weiss 201 S. Main Street Suite 300 Ann Arbor, MI 48104

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Mr. Eric C. Rassbach The Becket Fund for Religious Liberty 3000 K Street, N.W. Suite 220 Washington, DC 20007
Mr. Thomas J. Rheaume Jr. Bodman 1901 Saint Antoine Street Sixth Floor Detroit, MI 48226
Ms. Beth M. Rivers Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067
Mr. David A. Robinson P.O. Box 780 North Haven, CT 06473
Mr. Joseph Benjamin Rome Debevoise & Plimpton 919 Third Avenue New York, NY 10022
Mr. Jerome Cary Roth Munger, Tolles & Olson 560 Mission Street 27th Floor San Francisco, CA 94105
Mr. Alan Evan Schoenfeld Wilmer Hale 250 Greenwich Street 7 World Trade Center New York, NY 10007
Mr. Robert A. Sedler Law Office 471 W. Palmer Detroit, MI 48202-0000
Mr. Benjamin G. Shatz

Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 8
Manatt, Phelps & Phillips 11355 W. Olympic Boulevard Los Angeles, CA 90064
Mr. Paul March Smith Jenner & Block 1099 New York Avenue, N.W. Suite 900 Washington, DC 20001
Ms. Diane M. Soubly Stevenson Keppelman 444 S. Main Street Ann Arbor, MI 48104
Ms. Carole Margaret Stanyar Law Offices 221 N. Main Street Suite 300 Ann Arbor, MI 48104-0000
Ms. Anita L. Staver Law Office P.O. Box 540774 Orlando, FL 32854
Mr. Mathew D. Staver Liberty Counsel P.O. Box 540774 Orlando, FL 32854
Ms. Catherine Emily Stetson Hogan Lovells 555 Thirteenth Street, N.W. Columbia Square Washington, DC 20004
Ms. Sherri C. Strand Thompson Coburn One U.S. Bank Plaza St. Louis, MO 63101
Mr. Chase Strangio ACLU 125 Broad Street 18th Floor

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Case: 14-1341 Document: 184-1 Filed: 11/06/2014 Page: 9
New York, NY 10004
Mr. Jeffrey S. Trachtman Kramer, Levin, Naftalis & Frankel 1177 Avenue of the Americas New York, NY 10036
Mr. Rocky Chiu-feng Tsai Ropes & Gray Three Embarcadero Center San Francisco, CA 94111
Mr. James J. Walsh Bodman 201 S. Division Street Suite 400 Ann Arbor, MI 48104
Mr. Jason Walta Office of General Counsel National Education Association 1201 16th Street, N.W. Washington, DC 20036
Ms. Jessica Weisel Akin Gump 2029 Century Park, E. Suite 2400 Los Angeles, CA 90067
Mr. Michael Louis Whitlock Bingham McCutchen 2020 K Street, N.W. Washington, DC 20006
Mr. James R. Wierenga David & Wierenga 50 Monroe Street, N.W. Suite 720W Grand Rapids, MI 49503
Mr. Paul R.Q. Wolfson Wilmer Hale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006

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Ms. Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, N.W. Suite 501 Washington, DC 20036
Re: Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al Originating Case No. : 2:12-cv-10285
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0275p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

14-1341

┐

APRIL DEBOER, et al.,

│ │

Plaintiffs-Appellees, │

v.
RICHARD SNYDER, Governor, State of Michigan, in his official capacity, et al.,
Defendants-Appellants.

││>
│ │ │

│

14-3057

│

JAMES OBERGEFELL, et al.,

│

v.

Plaintiffs-Appellees,

│ │

│

RICHARD HODGES, Director of the Ohio Department │

of Health, in his official capacity,

│

Defendant-Appellant.

│ │

│

14-3464

│

BRITTANI HENRY, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

RICHARD HODGES, Director of the Ohio Department of Health, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

14-5291

│

GREGORY BOURKE, et al.,

│

Plaintiffs-Appellees,

│ │

v.

│

STEVE BESHEAR, Governor, Commonwealth of Kentucky, in his official capacity,
Defendant-Appellant.

│ │ │ │

│

│

Nos. 14-1341; 3057; 3464; 5291; 5297; 5818

1

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Nos. 14-1341/ 3057/ 3464/ 5291/ 5297/ 5818 DeBoer v. Snyder

Page 2

14-5297

│

VALERIA TANCO, et al.,

│ │

Plaintiffs-Appellees, │

v.

│ │

WILLIAM EDWARD “BILL” HASLAM, Governor, State │

of Tennessee, in his official capacity, et al.,

│

Defendants-Appellants. │ │

14-5818

│

TIMOTHY LOVE, et al.,

│ │

Plaintiffs/Intervenors-Appellees, │

v.

│ │

STEVE BESHEAR, Governor, Commonwealth of

│

Kentucky, in his official capacity,

│

Defendant-Appellant. │ ┘

14-1341 Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 2:12-cv-10285—Bernard A. Friedman, District Judge.
14-3057 & 14-3464 Appeals from the United States District Court for the Southern District of Ohio at Cincinnati; Nos. 1:13-cv-00501 & 1:14-cv-00129—Timothy S. Black, District Judge.
14-5291 & 14-5818 Appeals from the United States District Court for the Western District of Kentucky at Louisville; No. 3:13-cv-00750—John G. Heyburn II, District Judge.

14-5297 Appeal from the United States District Court for the Middle District of Tennessee at Nashville; No. 3:13-cv-01159—Aleta Arthur Trauger, District Judge.

Argued: August 6, 2014

Decided and Filed: November 6, 2014

Before: DAUGHTREY, SUTTON and COOK, Circuit Judges.

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COUNSEL
ARGUED: Aaron D. Lindstrom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant in 14-1341. Carole M. Stanyar, Ann Arbor, Michigan, for Appellees in 14-1341. Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 14-3057 and 14-3464. Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, for Appellees in 14-3057 and 143464. Leigh Gross Latherow, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant in 14-5291 and 14-5818. Laura E. Landenwich, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees in 14-5291 and 145818. Joseph F. Whalen, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants in 14-5297. William L. Harbison, SHERRARD & ROE, PLC, Nashville, Tennessee, for Appellees in 14-5297. ON BRIEF: 14-1341: Aaron D. Lindstrom, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Ann Arbor, Michigan, Dana M. Nessel, Detroit, Michigan, Robert A. Sedler, WAYNE STATE UNIVERSITY LAW SCHOOL, Detroit, Michigan, Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion, Michigan, for Appellees. Kyle J. Bristow, BRISTOW LAW, PLLC, Clarkston, Michigan, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Paul Benjamin Linton, Northbrook, Illinois, James R. Wierenga, DAVID & WIERENGA, P.C., Grand Rapids, Michigan, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., James J. Walsh, Thomas J. Rheaume, Jr., BODMAN PLC, Detroit, Michigan, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, Lawrence J. Joseph, Washington, D.C., Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, LIBERTY COUNSEL, Orlando, Florida, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. CONFERENCE OF CATHOLIC BISHOPS, Washington, D.C., Alexander Dushku, R. Shawn Gunnarson, KIRTON MCCONKIE, Salt Lake City, Utah, Erin Elizabeth Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Jason Walta, NATIONAL EDUCATION ASSOCIATION, Washington, D.C., Diana Raimi, JAFFE RAITT HEUER & WEISS, P.C., Ann Arbor, Michigan, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Alan M. Gershel, THOMAS M. COOLEY LAW SCHOOL, Auburn Hills, Michigan, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

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Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jonathan B. Miller, OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL, Boston, Massachusetts, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., for Amici Curiae. 14-3057: Bridget E. Coontz, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Chase B. Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Drew Dennis, ACLU OF OHIO, INC., Cleveland, Ohio, for Appellees. Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Lawrence J. Joseph, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Susan L. Sommer, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Camilla B. Taylor, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Roberta A. Kaplan, Jaren Janghorbani, Joshua D. Kaye, Jacob H. Hupart, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, Thomas D. Warren, BAKER & HOSTETLER LLP, Cleveland, Ohio, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Shannon P. Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, Washington, D.C., for Amici Curiae. 14-3464: Eric E. Murphy, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Jacklyn Gonzales Martin, GERHARDSTEIN & BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, Susan L. Sommer, M. Currey Cook, Keith Hammeran, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., New York, New York, Paul D. Castillo, LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., Dallas, Texas, for Appellees. Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Sean R. Gallagher, POLSINELLI PC,

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Denver, Colorado, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Paul D. Ritter, Jr., Christopher J. Weber, Robert G. Schuler, KEGLER, BROWN, HILL & RITTER CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph, Washington, D.C., Harlan D. Karp, Tina R. Haddad, Cleveland, Ohio, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Joseph R. Guerra, SIDLEY AUSTIN LLP, Washington, D.C., Emma L. Dill, BRYAN CAVE LLP, San Francisco, California, Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, G. David Carter, Joseph P. Bowser, Hunter T. Carter, ARENT FOX LLP, Washington, D.C., Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Harlan D. Karp, Cleveland, Ohio, for Amici Curiae. 14-5291: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, Shannon R. Fauver, Dawn R. Elliott, FAUVER LAW OFFICE, PLLC, Louisville, Kentucky, for Appellees. David A. Robinson, North Haven, Connecticut, Deborah J. Dewart, Swansboro, North Carolina, Stanton L. Cave, LAW OFFICE OF STAN CAVE, Lexington, Kentucky, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., David Boyle, Long Beach, California, Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Andrew J. Davis, FOLGER, LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Suzanne B. Goldberg,

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COLUMBIA LAW SCHOOL, New York, New York, Joshua A. Block, Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., for Amici Curiae. 14-5297: Joseph F. Whalen, Martha A. Campbell, Kevin G. Steiling, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, SHERRARD & ROE, PLC, Nashville, Tennessee, Abby R. Rubenfeld, RUBENFELD LAW OFFICE, PC, Nashville, Tennessee, Maureen T. Holland, HOLLAND AND ASSOCIATES, PLLC, Memphis, Tennessee, Regina M. Lambert, Knoxville, Tennessee, Shannon P. Minter, Christopher F. Stoll, Amy Whelan, Asaf Orr, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Appellees. Deborah J. Dewart, Swansboro, North Carolina, Eric Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., Byron J. Babione, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Paul M. Smith, JENNER & BLOCK LLP, Washington, D.C., Catherine E. Stetson, HOGAN LOVELLS US LLP, Washington, D.C., Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California, Elizabeth B. Wydra, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Andrew J. Davis, FOLGER LEVIN LLP, San Francisco, California, Rocky C. Tsai, ROPES & GRAY LLP, San Francisco, California, Jerome C. Roth, Nicole S. Phillis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Nicholas M. O’Donnell, SULLIVAN & WORCESTER LLP, Boston, Massachusetts, Sean R. Gallagher, POLSINELLI PC, Denver, Colorado, Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Mark C. Fleming, Felicia H. Ellsworth, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Alan Schoenfeld, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, Barbara J. Chisholm, P. Casey Pitts, ALTSHULER BERZON LLP, San Francisco, California, Christy L. Anderson, BRYAN CAVE LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome, DEBEVOISE & PLIMPTON LLP, New York, New York, Ria Tabacco Mar, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York, Joshua A. Block, Chase B. Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Christopher D. Man, CHADBOURNE & PARKE LLP, Washington, D.C., Marcia D. Greenberger, Emily J. Martin, NATIONAL WOMEN’S LAW CENTER, Washington, D.C., Jeffrey S. Trachtman, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, G. David Carter, Joseph P. Bowser, Hunter Carter, ARENT FOX LLP, Washington, D.C., Sara Bartel, MORRISON & FOERSTER LLP, San Francisco, California, Daniel McNeel Lane, Jr., Matthew E. Pepping, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, Texas, Jessica M. Weisel, AKIN

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GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, Marjory A. Gentry, ARNOLD & PORTER LLP, San Francisco, California, Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, Michael L. Whitlock, BINGHAM MCCUTCHEN LLP, Washington, D.C., Suzanne B. Goldberg, COLUMBIA LAW SCHOOL, New York, New York, for Amici Curiae. 14-5818: Leigh Gross Latherow, William H. Jones, Jr., Gregory L. Monge, VANANTWERP, MONGE, JONES, EDWARDS & MCCANN, LLP, Ashland, Kentucky, for Appellant. Laura E. Landenwich, Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC, Louisville, Kentucky, for Appellees. Diane M. Soubly, STEVENSON KEPPELMAN ASSOCIATES, Ann Arbor, Michigan, for Amicus Curiae.
SUTTON, J., delivered the opinion of the court, in which COOK, J., joined. DAUGHTREY, J. (pp. 43–64), delivered a separate dissenting opinion.
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OPINION _________________

SUTTON, Circuit Judge. This is a case about change—and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.
But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States to permit same-sex marriages under the Fourteenth Amendment.

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What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, libertyassuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?
Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage. Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment. The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

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I.
Michigan. One case comes from Michigan, where state law has defined marriage as a relationship between a man and a woman since its territorial days. See An Act Regulating Marriages § 1 (1820), in 1 Laws of the Territory of Michigan 646, 646 (1871). The State reaffirmed this view in 1996 when it enacted a law that declared marriage “inherently a unique relationship between a man and a woman.” Mich. Comp. Laws § 551.1. In 2004, after the Massachusetts Supreme Judicial Court invalidated the Commonwealth’s prohibition on same-sex marriage, Goodridge v. Dep’t of Pub. Health , 798 N.E.2d 941 (Mass. 2003), nearly fifty-nine percent of Michigan voters opted to constitutionalize the State’s definition of marriage. “To secure and preserve the benefits of marriage for our society and for future generations of children,” the amendment says, “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Mich. Const. art. I, § 25.
April DeBoer and Jayne Rowse, a lesbian couple living in Michigan, challenge the constitutionality of this definition. Marriage was not their first objective. DeBoer and Rowse each had adopted children as single parents, and both wanted to serve as adoptive parents for the other partner’s children. Their initial complaint alleged that Michigan’s adoption laws violated the Equal Protection Clause of the Fourteenth Amendment. The State moved to dismiss the lawsuit for lack of standing, and the district court tentatively agreed. Rather than dismissing the action, the court “invit[ed the] plaintiffs to seek leave to amend their complaint to . . . challenge” Michigan’s laws denying them a marriage license. DeBoer R. 151 at 3. DeBoer and Rowse accepted the invitation and filed a new complaint alleging that Michigan’s marriage laws violated the due process and equal protection guarantees of the Fourteenth Amendment.
Both sets of parties moved for summary judgment. The district court concluded that the dispute raised “a triable issue of fact” over whether the “rationales” for the Michigan laws furthered “a legitimate state interest,” and it held a nine-day trial on the issue. DeBoer R. 89 at 4, 8. The plaintiffs’ experts testified that same-sex couples raise children as well as opposite-sex couples, and that denying marriage to same-sex couples creates instabilities for their children and families. The defendants’ experts testified that the evidence regarding the comparative success of children raised in same-sex households is inconclusive. The district court sided with the

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plaintiffs. It rejected all of the State’s bases for its marriage laws and concluded that the laws failed to satisfy rational basis review.
Kentucky. Two cases challenge two aspects of Kentucky’s marriage laws. Early on, Kentucky defined marriage as “the union of a man and a woman.” Jones v. Hallahan , 501 S.W.2d 588, 589 (Ky. 1973); see An Act for Regulating the Solemnization of Marriages § 1, 1798 Ky. Acts 49, 49–50. In 1998, the Kentucky legislature codified the common law definition. The statute says that “‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.” Ky. Rev. Stat. § 402.005. In 2004, the Kentucky legislature proposed a constitutional amendment providing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Ky. Const. § 233A. Seventy-four percent of the voters approved the amendment.
Two groups of plaintiffs challenge these Kentucky laws. One group, the fortuitously named Love plaintiffs, challenges the Commonwealth’s marriage-licensing law. Two couples filed that lawsuit: Timothy Love and Lawrence Ysunza, along with Maurice Blanchard and Dominique James. Both couples claim that the Fourteenth Amendment prohibits Kentucky from denying them marriage licenses.
The other group, the Bourke plaintiffs, challenges the ban on recognizing out-of-state same-sex marriages. Four same-sex couples filed the lawsuit: Gregory Bourke and Michael DeLeon; Jimmy Meade and Luther Barlowe; Randell Johnson and Paul Campion; and Kimberly Franklin and Tamera Boyd. All four couples were married outside Kentucky, and they contend that the State’s recognition ban violates their due process and equal protection rights. Citing the hardships imposed on them by the recognition ban—loss of tax breaks, exclusion from intestacy laws, loss of dignity—they seek to enjoin its enforcement.
The district court ruled for the plaintiffs in both cases. In Love, the court held that the Commonwealth could not justify its definition of marriage on rational basis grounds. It also thought that classifications based on sexual orientation should be subjected to intermediate

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scrutiny, which the Commonwealth also failed to satisfy. In Bourke, the court invalidated the recognition ban on rational basis grounds.
Ohio. Two cases challenge Ohio’s refusal to recognize out-of-state same-sex marriages. Ohio also has long adhered to the traditional definition of marriage. See An Act Regulating Marriages § 1, 1803 Ohio Laws 31, 31; Carmichael v. State , 12 Ohio St. 553, 560 (1861). It reaffirmed this definition in 2004, when the legislature passed a Defense of Marriage Act, which says that marriage “may only be entered into by one man and one woman.” Ohio Rev. Code § 3101.01(A). “Any marriage entered into by persons of the same sex in any other jurisdiction,” it adds, “shall be considered and treated in all respects as having no legal force or effect.” Id. § 3101.01(C)(2). Later that same year, sixty-two percent of Ohio voters approved an amendment to the Ohio Constitution along the same lines. As amended, the Ohio Constitution says that Ohio recognizes only “a union between one man and one woman” as a valid marriage. Ohio Const. art. XV, § 11.
Two groups of plaintiffs challenge these Ohio laws. The first group, the Obergefell plaintiffs, focuses on one application of the law. They argue that Ohio’s refusal to recognize their out-of-state marriages on Ohio-issued death certificates violates due process and equal protection. Two same-sex couples in long-term, committed relationships filed the lawsuit: James Obergefell and John Arthur; and David Michener and William Herbert Ives. All four of them are from Ohio and were married in other States. When Arthur and Ives died, the State would not list Obergefell and Michener as spouses on their death certificates. Obergefell and Michener sought an injunction to require the State to list them as spouses on the certificates. Robert Grunn, a funeral director, joined the lawsuit, asking the court to protect his right to recognize same-sex marriages on other death certificates.
The second group, the Henry plaintiffs, raises a broader challenge. They argue that Ohio’s refusal to recognize out-of-state marriages between same-sex couples violates the Fourteenth Amendment no matter what marital benefit is affected. The Henry case involves four same-sex couples, all married in other States, who want Ohio to recognize their marriages on their children’s birth certificates. Three of the couples (Brittani Henry and Brittni Rogers; Nicole and Pam Yorksmith; Kelly Noe and Kelly McCracken) gave birth to children in Ohio and wish to have both of their names listed on each child’s birth certificate rather than just the child’s

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biological mother. The fourth couple (Joseph Vitale and Robert Talmas) lives in New York and adopted a child born in Ohio. They seek to amend their son’s Ohio birth certificate so that it lists both of them as parents.
The district court granted the plaintiffs relief in both cases. In Obergefell, the court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. In Henry, the district court reached many of the same conclusions and expanded its recognition remedy to encompass all married same-sex couples and all legal incidents of marriage under Ohio law.
Tennessee. The Tennessee case is of a piece with the two Ohio cases and one of the Kentucky cases, as it too challenges the State’s same-sex-marriage recognition ban. Tennessee has always defined marriage in traditional terms. See An Act Concerning Marriages § 3 (1741), in Public A cts of the G eneral Assembly of North-Carolina and Tennessee 46, 46 (1815). In 1996, the Tennessee legislature reaffirmed “that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.” Tenn. Code Ann. § 36-3-113(a). In 2006, the State amended its constitution to incorporate the existing definition of marriage. See Tenn. Const. art. XI, § 18. Eighty percent of the voters supported the amendment.
Three same-sex couples, all in committed relationships, challenge the recognition ban: Valeria Tanco and Sophy Jesty; Ijpe DeKoe and Thomas Kostura; and Johno Espejo and Matthew Mansell. All three couples were legally married in other States. The district court preliminarily enjoined the law. Relying on district court decisions within the circuit and elsewhere, the court concluded that the couples likely would show that Tennessee’s ban failed to satisfy rational basis review. The remaining preliminary injunction factors, the court held, also weighed in the plaintiffs’ favor.

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All four States appealed the decisions against them.
II.
Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to expand the definition of marriage to include same-sex couples? The Michigan appeal (DeBoer) presents this threshold question, and so does one of the Kentucky appeals (Love). Caselaw offers many ways to think about the issue.
A.
Perspective of an in termediate co urt. Start with a recognition of our place in the hierarchy of the federal courts. As an “inferior” court (the Constitution’s preferred term, not ours), a federal court of appeals begins by asking what the Supreme Court’s precedents require on the topic at hand. Just such a precedent confronts us.
In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause . . . is not a charter for restructuring it by judicial legislation.” Id. As for the equal protection claim, the court reasoned: “[T]he state’s classification of persons authorized to marry” does not create an “irrational or invidious discrimination. . . . [T]hat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate . . . [creates only a] theoretically imperfect [classification] . . . [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.” Id. at 187. The Supreme Court’s decision four years earlier in Loving v. Virginia, 388 U.S. 1 (1967), which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. “[I]n commonsense and in a constitutional sense,” the state court

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explained, “there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Baker, 191 N.W.2d at 187.
Baker and McConnell appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise “a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 810 (1972). This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S. 332, 345 (1975) (internal quotation marks omitted). The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.
But that was then; this is now. And now, claimants insist, must account for United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations. Id. at 2691–92. Before the Act’s passage in 1996, the federal government had traditionally relied on state definitions of marriage instead of purporting to define marriage itself. Id. at 2691. That premise does not work—it runs the other way—in a case involving a challenge in federal court to state laws defining marriage. The point of Windsor was to prevent the Federal Government from “divest[ing]” gay couples of “a dignity and status of immense import” that New York’s extension of the definition of marriage gave them, an extension that “without doubt” any State could provide. Id. at 2692, 2695. Windsor made explicit that it does not answer today’s question, telling us that the “opinion and its holding are confined to . . . lawful

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marriages” already protected by some of the States. Id. at 2696. Bringing the matter to a close, the Court held minutes after releasing Windsor that procedural obstacles in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), prevented it from considering the validity of state marriage laws. Saying that the Court declined in Hollingsworth to overrule Baker openly but decided in Windsor to overrule it by stealth makes an unflattering and unfair estimate of the Justices’ candor.
Even if Windsor did not overrule Baker by name, the claimants point out, lower courts still may rely on “doctrinal developments” in the aftermath of a summary disposition as a ground for not following the decision. Hicks, 422 U.S. at 344. And Windsor, they say, together with Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), permit us to cast Baker aside. But this reading of “doctrinal developments” would be a groundbreaking development of its own. From the perspective of a lower court, summary dispositions remain “controlling precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Hicks, 422 U.S. at 343–45. And the Court has told us to treat the two types of decisions, whether summary dispositions or full-merits decisions, the same, “prevent[ing] lower courts” in both settings “from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley , 432 U.S. 173, 176 (1977). Lest doubt remain, the Court has also told us not to ignore its decisions even when they are in tension with a new line of cases. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v. Felton, 521 U.S. 203, 237 (1997).
Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker) or when the Court has overruled the decision by outcome (if, say, Hollingsworth had invalidated the California law without mentioning Baker). Any other approach returns us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court. In the end, neither of the two preconditions for ignoring Supreme Court precedent applies here. Windsor as shown does not

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mention Baker, and it clarifies that its “opinion and holding” do not govern the States’ authority to define marriage. Hollingsworth was dismissed. And neither Lawrence nor Romer mentions Baker, and neither is inconsistent with its outcome. The one invalidates a State’s criminal antisodomy law and explains that the case “does not involve . . . formal recognition” of same-sex relationships. Lawrence, 539 U.S. at 578. The other invalidates a “[s]weeping” and “unprecedented” state law that prohibited local communities from passing laws that protect citizens from discrimination based on sexual orientation. Romer, 517 U.S. at 627, 633, 635–36.
That brings us to another one-line order. On October 6, 2014, the Supreme Court “denied” the “petitions for writs of certiorari” in 1,575 cases, seven of which arose from challenges to decisions of the Fourth, Seventh, and Tenth Circuits that recognized a constitutional right to same-sex marriage. But this kind of action (or inaction) “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver , 260 U.S. 482, 490 (1923). “The ‘variety of considerations [that] underlie denials of the writ’ counsels against according denials of certiorari any precedential value.” Teague v. Lane , 489 U.S. 288, 296 (1989) (internal citation omitted). Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide.
But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy. And, if through the courts, that does not tell us why—whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (fundamental rights); Baskin v. Bogan , 766 F.3d 648 (7th Cir. 2014) (rational basis, animus); Latta v. Otter , No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (animus, fundamental rights, suspect classification); Bishop v. Smith , 760 F.3d 1070 (10th Cir. 2014) (fundamental rights); Kitchen v. Herbert ,

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755 F.3d 1193 (10th Cir. 2014) (same). The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories. If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one, as several other judges have concluded as well. See Bostic, 760 F.3d at 385–98 (Niemeyer, J., dissenting); Kitchen, 755 F.3d at 1230–40 (Kelly, J., concurring in part and dissenting in part); Conde-Vidal v. Garcia-Padilla , No. 14-1253-PG, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014).
There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
B.
Original meaning. All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. See U.S. Const. art. V. If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too

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lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.
Many precedents gauging individual rights and national power, leading to all manner of outcomes, confirm the import of original meaning in legal debates. See, e.g. , Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173–80 (1803); McCulloch v. Ma ryland, 17 U.S. (4 Wheat.) 316, 401–25 (1819); Legal Tender C ases, 79 U.S. 457, 536–38 (1870); Myers v. United States , 272 U.S. 52, 110–39 (1926); INS v. Chadha , 462 U.S. 919, 944–59 (1983); Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 218–25 (1995); Washington v. Glucksburg , 521 U.S. 702, 710–19 (1997); Crawford v. Washington, 541 U.S. 36, 42–50 (2004); Boumediene v. Bush, 553 U.S. 723, 739–46 (2008); Giles v. California, 554 U.S. 353, 358–61 (2008); District of Columbia v. Heller, 554 U.S. 570, 576–600 (2008).
In trying to figure out the original meaning of a provision, it is fair to say, the line between interpretation and evolution blurs from time to time. That is an occupational hazard for judges when it comes to old or generally worded provisions. Yet that knotty problem does not confront us. Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation. In one case, the Court held that the customary practice of opening legislative meetings with prayer alone proves the constitutional permissibility of legislative prayer, quite apart from how that practice might fare under the most up-to-date Establishment Clause test. Town of Greece v. Galloway , 134 S. Ct. 1811, 1818–20 (2014). In another case, the Court interpreted the Recess Appointments Clause based in part on long-accepted usage. NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60 (2014). Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

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C.
Rational basis review. Doctrine leads to the same place as history. A first requirement of any law, whether under the Due Process or Equal Protection Clause, is that it rationally advance a legitimate government policy. Vance v. B radley, 440 U.S. 93, 97 (1979). Two words (“judicial restraint,” FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 314 (1993)) and one principle (trust in the people that “even improvident decisions will eventually be rectified by the democratic process,” Vance, 440 U.S. at 97) tell us all we need to know about the light touch judges should use in reviewing laws under this standard. So long as judges can conceive of some “plausible” reason for the law—any plausible reason, even one that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust, or unwise the judges may consider it as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993); Nordlinger v. Hahn, 505 U.S. 1, 11, 17–18 (1992).
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.
Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way

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to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486–87 (1970).
No doubt, that is not the only way people view marriage today. Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers. Yet it does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.
The signature feature of rational basis review is that governments will not be placed in the dock for doing too much or for doing too little in addressing a policy question. Id. In a modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little—for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding. If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns , 508 U.S. at 315, it is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy. Rational basis review does not empower federal courts to “subject” legislative line-

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drawing to “courtroom” factfinding designed to show that legislatures have done too much or too little. Id.
What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.
To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. As a matter of state law, the possibility of gay marriage became real in 2003 with the Massachusetts Supreme Judicial Court’s decision in Goodridge. Eleven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage. Eleven years indeed is not even the right timeline. The fair question is whether in 2004, one year after Goodridge, Michigan voters could stand by the traditional definition of marriage. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a

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dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.
In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue. With love and commitment nowhere to be seen, States will grant a marriage license to two friends who wish to share in the tax and other material benefits of marriage, at least until the State’s no-fault divorce laws allow them to exit the partnership freely. And States allow couples to continue procreating no matter how little stability, safety, and love they provide the children they already have. Nor has unjustified sanctimony stayed off the stage when it comes to marital legislation—with monogamists who “do not monog” criticizing alleged polygamists who “do not polyg.” See Paul B. Beers, Pennsylvania Politics Today and Yesterday 51 (1980).
How, the claimants ask, could anyone possibly be unworthy of this civil institution? Aren’t gay and straight couples both capable of honoring this civil institution in some cases and of messing it up in others? All of this, however, proves much too much. History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed. Even if we think about today’s issue and today’s alleged inconsistencies solely from the perspective of the claimants in this case, it is difficult to call that formula, already coming to terms with a new view of marriage, a failure.
Any other approach would create line-drawing problems of its own. Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little

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because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.
Several cases illustrate just how seriously the federal courts must take the line-drawing deference owed the democratic process under rational basis review. Massachusetts Board of Retirement v. Murgia , 427 U.S. 307 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)? Armour v. City of Indianapolis , 132 S. Ct. 2073 (2012), says that if a city cancels a tax, the bureaucratic hassle of issuing refunds entitles it to keep money already collected from citizens who paid early. If administrative convenience amounts to an adequate public purpose, why not a rough sense of social stability? More deferential still, Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552 (1947), concludes that a State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?
The debate over marriage of course has another side, and we cannot deny the costs to the plaintiffs of allowing the States to work through this profound policy debate. The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing

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of subsidize, their relationships under state law. In addition to depriving them of this status, it deprives them of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer—but from elected legislators, not life-tenured judges. Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that “a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage” can have free and reasonable rein. Windsor, 133 S. Ct. at 2689.
D.
Animus. Given the broad deference owed the States under the democracy-reinforcing norms of rational basis review, the cases in which the Supreme Court has struck down a state law on that basis are few. When the Court has taken this step, it usually has been due to the novelty of the law and the targeting of a single group for disfavored treatment under it. In one case, a city enacted a new zoning code with the none-too-subtle purpose of closing down a home for the intellectually disabled in a neighborhood that apparently wanted nothing to do with them. The reality that the code applied only to homes for the intellectually disabled—and not to other dwellings such as fraternity houses—led the Court to invalidate the regulation on the ground that the city had based it upon “an irrational prejudice against the mentally retarded.” City o f Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 450 (1985). In another case, a statewide initiative denied gays, and gays alone, access to the protection of the State’s existing antidiscrimination laws. The novelty of the law, coupled with the distance between the reach of the law and any legitimate interest it might serve, showed that the law was “born of animosity toward” gays and suggested a design to make gays “unequal to everyone else.” Romer, 517 U.S. at 634–35.
None of the statewide initiatives at issue here fits this pattern. The four initiatives, enacted between 2004 and 2006, codified a long-existing, widely held social norm already reflected in state law. “[M]arriage between a man and a woman,” as the Court reminded us just

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last year, “had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689.
Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006 , at 13–14 (2006), available at http://s3.amazonaws.com/hrc-assets//files/assets/resources/StateToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.
Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions. Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit. Nor is there anything static about this process. In some States, the people have since re-amended their constitutions to broaden the category of those eligible to marry. In other States, the people seemed primed to do the same but for now have opted to take a waitand-see approach of their own as federal litigation proceeds. See, e.g., Wesley Lowery, SameSex Marriage Is Gaining Mome ntum, but Some Advocates Don’ t W ant I t on the Ballo t in Ohio, Wash. Post (June 14, 2014), http://www.washingtonpost.com/politics/same-sex-marriageis-gaining-momentum-but-ohio-advocates-dont-want-it-on-the-ballot/2014/06/14/a090452ae77e-11e3-afc6-a1dd9407abcf_story.html (explaining that Ohio same-sex marriage advocates opted not to place the question on the 2014 state ballot despite collecting nearly twice the number of required signatures). What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to De fend Affirm ative Action , 134 S. Ct. 1623, 1638 (2014). “It is demeaning to the

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democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Id. at 1637.
What of the possibility that other motivations affected the amendment process in the four States? If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence. The number of people who supported each initiative—Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million)—was large and surely diverse. In addition to the proper role of the courts in a democracy, many other factors presumably influenced the voters who supported and opposed these amendments: that some politicians favored the amendment and others opposed it; that some faith groups favored the amendment and others opposed it; that some thought the amendment would strengthen families and others thought it would weaken them or were not sure; that some thought the amendment would be good for children and others thought it would not be or were not sure; and that some thought the amendment would preserve a long-established definition of marriage and others thought it was time to accommodate gay couples. Even a rough sense of morality likely affected voters, with some thinking it immoral to exclude gay couples and others thinking the opposite. For most people, whether for or against the amendment, the truth of why they did what they did is assuredly complicated, making it impossible to pin down any one consideration, as opposed to a rough aggregation of factors, as motivating them. How in this setting can we indict the 2.7 million Michigan voters who supported the amendment in 2004, less than one year after the first state supreme court recognized a constitutional right to gay marriage, for favoring the amendment for prejudicial reasons and for prejudicial reasons alone? Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis review. Even the gay-rights community, remember, was not of one mind about taking on the benefits and burdens of marriage until the early 1990s. See George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality 58, 88 (2004); Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 48–52 (2013). A decade later, a State’s voters should not be taken to task for failing to be of one mind about the issue themselves.

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Some equanimity is in order in assessing the motives of voters who invoked a constitutionally respected vehicle for change and for resistance to change: direct democracy. See Pac. States Tel. & Tel. Co. v. Oregon , 223 U.S. 118, 151 (1912). Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. “Tolerance,” like respect and dignity, is best traveled on a “two-way street.” Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012). If there is a dominant theme to the Court’s cases in this area, it is to end otherness, not to create new others.
All of this explains why the Court’s decisions in City of Cleburne and Romer do not turn on reading the minds of city voters in one case or of statewide initiative supporters in the other. They turn on asking whether anything but prejudice to the affected class could explain the law. See City of Cleburne, 473 U.S. at 450; Romer, 517 U.S. at 635. No such explanations existed in those cases. Plenty exist here, as shown above and as recognized by many others. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring in the judgment) (“Unlike the moral disapproval of same-sex relations[,] . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”); Bishop, 760 F.3d at 1104–09 (Holmes, J., concurring) (same); Citizens for Equal Prot. v. Bruning , 455 F.3d 859, 868 (8th Cir. 2006) (enactment not “‘inexplicable by anything but animus’ towards same-sex couples”); Conaway v. Deane, 932 A.2d 571, 635 (Md. 2007) (no reason to “infer antipathy”); Hernandez v. Robles , 855 N.E.2d 1, 8 (N.Y. 2006) (those who favor the traditional definition are not “irrational, ignorant or bigoted”); Andersen v. King Cnty. , 138 P.3d 963, 981 (Wash. 2006) (en banc) (“the only reason” for the law was not “anti-gay sentiment”).
One other point. Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common

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law definitions of marriage applicable to one man and one woman—definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States’ other marital laws on state constitutional grounds. No one filed such a challenge here, however.
E.
Fundamental right to marry. Under the Due Process Clause, courts apply more muscular review—“strict,” “rigorous,” usually unforgiving, scrutiny—to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mind that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects—from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (public education); Maher v. Roe , 432 U.S. 464, 469 (1977) (healthcare); Lindsey v. Normet , 405 U.S. 56, 73–74 (1972) (housing); Glucksberg, 521 U.S. at 728 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (internal citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights. See id. at 720. But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.
That leaves the other option—that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in Goodridge.
Matters do not change because Loving v. Virginia , 388 U.S. 1 (1967), held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between

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a man and a woman no doubt [was] thought of . . . as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay AfricanAmerican male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.
A similar problem confronts the claimants’ reliance on other decisions treating marriage as a fundamental right, whether in the context of a statute denying marriage licenses to fathers who could not pay child support, Zablocki v. Redhail, 434 U.S. 374, 383 (1978), or a regulation restricting prisoners’ ability to obtain marriage licenses, Turner v. Safley , 482 U.S. 78, 94–95 (1987). It strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.
No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

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The upshot of fundamental-rights status, keep in mind, is strict-scrutiny status, subjecting all state eligibility rules for marriage to rigorous, usually unforgiving, review. That makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny.
Consider also the number of people eligible to marry. As late as the eighteenth century, “[t]he predominance of monogamy was by no means a foregone conclusion,” and “[m]ost of the peoples and cultures around the globe” had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage’s fabric. Beginning in the nineteenth century, the federal government “encouraged or forced” Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. Id. at 26; see Reynolds v. United States , 98 U.S. 145 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?
Consider finally the nature of the individuals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L. Rev. 1817, 1824–32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed “desirable in many parts of the world”; indeed, around “10 percent of marriages worldwide are between people who are second cousins or closer.” Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009), http://www.nytimes.com/2009/11/26/garden/26cousins.html. Even in the United States, cousin marriage was not prohibited until the mid-nineteenth century, when

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Kansas—followed by seven other States—enacted the first ban. See Diane B. Paul & Hamish G. Spencer, “It’s Ok, We’re Not Cousin s by Blood”: The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so.
F.
Discrete and insular class without political power. A separate line of cases, this one under the Equal Protection Clause, calls for heightened review of laws that target groups whom legislators have singled out for unequal treatment in the past. This argument faces an initial impediment. Our precedents say that rational basis review applies to sexual-orientation classifications. See Davis v. Prison Health Servs. , 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty. Bd. of Educ. , 470 F.3d 250, 260–61 (6th Cir. 2006); Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir. 1997).
There is another impediment. The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course. Courts consider four rough factors in deciding whether to treat a legislative classification as suspect and presumptively unconstitutional: whether the group has been historically victimized by governmental discrimination; whether it has a defining characteristic that legitimately bears on the classification; whether it exhibits unchanging characteristics that define it as a discrete group; and whether it is politically powerless. See Rodriguez, 411 U.S. at 28.
We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans

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almost every society in history. By contrast, “American laws targeting same-sex couples did not
develop until the last third of the 20th century.” Lawrence, 539 U.S. at 570. This order of events prevents us from inferring from history that prejudice against gays led to the traditional
definition of marriage in the same way that we can infer from history that prejudice against
African Americans led to laws against miscegenation. The usual leap from history of
discrimination to intensification of judicial review does not work.
Windsor says nothing to the contrary. In arguing otherwise, plaintiffs mistake Windsor’s avoidance of one federalism question for avoidance of federalism altogether. Here is the key
passage:
Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”
Windsor, 133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633). Plaintiffs read these words (and others that follow) as an endorsement of heightened review in today’s case, pointing to the first
two sentences as proof that individual dignity, not federalism, animates Windsor’s holding.
Yet federalism permeates both parts of this passage and both parts of the opinion.
Windsor begins by expressing doubts about whether Congress has the delegated power to enact a statute like DOMA at all. But instead of resolving the case on the far-reaching enumerated-
power ground, it resolves the case on the narrower Romer ground—that anomalous exercises of power targeting a single group raise suspicion that bigotry rather than legitimate policy is afoot.
Why was DOMA anomalous? Only federalism can supply the answer. The national statute
trespassed upon New York’s time-respected authority to define the marital relation, including by
“enhanc[ing] the recognition, dignity, and protection” of gay and lesbian couples. Id. Today’s case involves no such “divest[ing]”/“depriv[ing]”/“undermin[ing]” of a marriage status granted

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through a State’s authority over domestic relations within its borders and thus provides no basis for inferring that the purpose of the state law was to “impose a disadvantage”/“a separate status”/“a stigma” on gay couples. Id. at 2692–95. When the Framers “split the atom of sovereignty,” U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 838 (Kennedy, J., concurring), they did so to enhance liberty, not to allow the National Government to divest liberty protections granted by the States in the exercise of their historic and in this instance nearly exclusive power. What we have here is something entirely different. It is the States doing exactly what every State has been doing for hundreds of years: defining marriage as they see it. The only thing that has changed is the willingness of many States over the last eleven years to expand the definition of marriage to encompass gay couples.
Any other reading of Windsor would require us to subtract key passages from the opinion and add an inverted holding. The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage. Windsor, 133 S. Ct. at 2692–93. A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago—to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later.
Nor, as the most modest powers of observation attest, is this a setting in which “political powerlessness” requires “extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28. This is not a setting in which dysfunction mars the political process. See Reynold s v. Sims , 377 U.S. 533 (1964); Baker v. Carr , 369 U.S. 186 (1962). It is not a setting in which the recalcitrance of Jim Crow demands judicial, rather than we-can’t-wait-

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forever legislative, answers. See Brown v. Bd. of Educ. , 347 U.S. 483 (1954). It is not a setting in which time shows that even a potentially powerful group cannot make headway on issues of equality. See Frontiero v. Richardson , 411 U.S. 677 (1973). It is not a setting where a national crisis—the Depression—seemingly demanded constitutional innovation. See W. Coast Hotel Co. v. Parrish , 300 U.S. 379 (1937). And it is not a setting, most pertinently, in which the local, state, and federal governments historically disenfranchised the suspect class, as they did with African Americans and women. See United States v. Carolene Prods. Co. , 304 U.S. 144, 152 n.4 (1938).
Instead, from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold. Throughout that time, other advances for the claimants’ cause are manifest. Nationally, “Don’t Ask, Don’t Tell” is gone. Locally, the Cincinnati charter amendment that prevented gay individuals from obtaining certain preferences from the city, upheld by our court in 1997, Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati , 128 F.3d 289 (6th Cir. 1997), is no more. The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.
Why, it is worth asking, the sudden change in public opinion? If there is one thing that seems to challenge hearts and minds, even souls, on this issue, it is the transition from the abstract to the concrete. If twenty-five percent of the population knew someone who was openly gay in 1985, and seventy-five percent knew the same in 2000, Klarman, supra, at 197, it is fair to wonder how few individuals still have not been forced to think about the matter through the lens of a gay friend or family member. That would be a discrete and insular minority.
The States’ undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism. An analogy shows why. When a state law targets noncitizens—a group marked by its lack of political power and its history of enduring discrimination—it must in general meet the most demanding of constitutional tests in order to survive a skirmish with a court. But when a federal law targets noncitizens, a mere rational basis will save it from invalidation. This disparity arises because of the Nation’s

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authority (and the States’ corresponding lack of authority) over international affairs. Mathews v. Diaz, 426 U.S. 67, 84–85 (1976). If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn’t state preeminence in domestic relations call for equally lenient review of state marriage definitions?
G.
Evolving meaning. If all else fails, the plaintiffs invite us to consider that “[a] core strength of the American legal system . . . is its capacity to evolve” in response to new ways of thinking about old policies. DeBoer Appellees’ Br. at 57–58. But even if we accept this invitation and put aside the past—original meaning, tradition, time-respected doctrine—that does not take the plaintiffs where they wish to go. We could, to be sure, look at this case alongside evolving moral and policy considerations. The Supreme Court has done so before. Lawrence, 539 U.S. at 573. It may do so again. “A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights . . . to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). Why not do so here?
Even on this theory, the marriage laws do not violate the Constitution. A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?
The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today’s case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting

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marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.
If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment. No one would accuse the Supreme Court of acting irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise, we should hesitate to accuse the States of acting irrationally in failing to recognize the right in 2004 or 2006 or for that matter today. Federal judges engaged in the inherent pacing that comes with living constitutionalism should appreciate the inherent pacing that comes with democratic majorities deciding within reasonable bounds when and whether to embrace an evolving, as opposed to settled, societal norm. The one form of pacing is akin to the other, making it anomalous for the Court to hold that the States act unconstitutionally when making reasonable pacing decisions of their own.
From time to time, the Supreme Court has looked beyond our borders in deciding when to expand the meaning of constitutional guarantees. Lawrence, 539 U.S. at 576. Yet foreign practice only reinforces the impropriety of tinkering with the democratic process in this setting. The great majority of countries across the world—including such progressive democracies as Australia and Finland—still adhere to the traditional definition of marriage. Even more telling, the European Court of Human Rights ruled only a few years ago that European human rights laws do not guarantee a right to same-sex marriage. Schalk & Kopf v. A ustria, 2010-IV Eur. Ct. H.R. 409. “The area in question,” it explained in words that work just as well on this side of the Atlantic, remains “one of evolving rights with no established consensus,” which means that States must “enjoy [discretion] in the timing of the introduction of legislative changes.” Id. at 438. It reiterated this conclusion as recently as this July, declaring that “the margin of appreciation to be afforded” to States “must still be a wide one.” Hämäläinen v. Finland, No. 37359/09, HUDOC, at *19 (Eur. Ct. H.R. July 16, 2014). Our Supreme Court relied on the

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European Court’s gay-rights decisions in Lawrence. 539 U.S. at 576. What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.
Other practical considerations also do not favor the creation of a new constitutional right here. While these cases present a denial of access to many benefits, what is “[o]f greater importance” to the claimants, as they see it, “is the loss of . . . dignity and respect” occasioned by these laws. Love Appellees’ Br. at 5. No doubt there is much to be said for “dignity and respect” in the eyes of the Constitution and its interpreters. But any loss of dignity and respect on this issue did not come from the Constitution. It came from the neighborhoods and communities in which gay and lesbian couples live, and in which it is worth trying to correct the problem in the first instance—and in that way “to allow the formation of consensus respecting the way the members” of a State “treat each other in their daily contact and constant interaction with each other.” Windsor, 133 S. Ct. at 2692.
For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. If the plaintiffs are convinced that litigation is the best way to resolve today’s debate and to change heads and hearts in the process, who are we to say? Perhaps that is not the only point, however. Yes, we cannot deny thinking the plaintiffs deserve better—earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better—not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. Rights need not be countermajoritarian to count. See, e.g. , Civil Rights Act of 1964, Pub. L. No. 88352, 78 Stat. 241. Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
Last, but not least, federal courts never expand constitutional guarantees in a vacuum. What one group wants on one issue from the courts today, another group will want on another

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issue tomorrow. The more the Court innovates under the Constitution, the more plausible it is for the Court to do still more—and the more plausible it is for other advocates on behalf of other issues to ask the Court to innovate still more. And while the expansion of liberal and conservative constitutional rights will solve, or at least sidestep, the amendment-difficulty problem that confronts many individuals and interest groups, it will exacerbate the judgeconfirmation problem. Faith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm.
III.
Does the Constitution prohibit a State from denying recognition to same-sex marriages conducted in other States? That is the question presented in the two Ohio cases (Obergefell and Henry), one of the Kentucky cases (Bourke), and the Tennessee case (Tanco). Our answer to the first question goes a long way toward answering this one. If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.
The Constitution in general does not delineate when a State must apply its own laws and when it must apply the laws of another State. Neither any federal statute nor federal common law fills the gap. Throughout our history, each State has decided for itself how to resolve clashes between its laws and laws of other sovereigns—giving rise to the field of conflict of laws. The States enjoy wide latitude in fashioning choice-of-law rules. Sun Oil Co. v. Wortman , 486 U.S. 717, 727–29 (1988); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307–08 (1981).
The plaintiffs in these cases do not claim that refusal to recognize out-of-state gay and lesbian marriages violates the Full Faith and Credit Clause, the principal constitutional limit on state choice-of-law rules. Wisely so. The Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410, 422 (1979). If defining marriage as an opposite-sex relationship amounts to a legitimate public policy—and we have just explained that it does—the Full Faith and Credit Clause does not prevent a State from applying that policy to couples who move from one State to another.
The plaintiffs instead argue that failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses. But we do not think that the

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invocation of these different clauses justifies a different result. As shown, compliance with the Due Process and Equal Protection Clauses in this setting requires only a rational relationship between the legislation and a legitimate public purpose. And a State does not behave irrationally by insisting upon its own definition of marriage rather than deferring to the definition adopted by another State. Preservation of a State’s authority to recognize, or to opt not to recognize, an outof-state marriage preserves a State’s sovereign interest in deciding for itself how to define the marital relationship. It also discourages evasion of the State’s marriage laws by allowing individuals to go to another State, marry there, then return home. Were it irrational for a State to adhere to its own policy, what would be the point of the Supreme Court’s repeated holdings that the Full Faith and Credit Clause “does not require a State to apply another State’s law in violation of its own public policy”? Id.
Far from undermining these points, Windsor reinforces them. The case observes that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” 133 S. Ct. at 2691 (internal quotation marks omitted). How could it be irrational for a State to decide that the foundation of its domesticrelations law will be its definition of marriage, not somebody else’s? Windsor adds that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” Id. How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?
Nor does the policy of nonrecognition trigger Windsor’s (or Romer’s) principle that unprecedented exercises of power call for judicial skepticism. States have always decided for themselves when to yield to laws of other States. Exercising this power, States often have refused to enforce all sorts of out-of-state rules on the grounds that they contradict important local policies. See Restatement (First) of Conflict of Laws § 612; Restatement (Second) of Conflict of Laws § 90. Even more telling, States in many instances have refused to recognize marriages performed in other States on the grounds that these marriages depart from cardinal principles of the State’s domestic-relations laws. See Restatement (First) of Conflict of Laws

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§ 134; Restatement (Second) of Conflict of Laws § 283. The laws challenged here involve routine rather than anomalous uses of state power.
What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g. , Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination[] of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S. Ct. at 2692).
But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis , 16 Ohio Supp. 19, 20 (Ohio Ct. Com. Pl. 1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208–09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev. Code § 3101.01(C).
IV.
That leaves one more claim, premised on the constitutional right to travel. In the Tennessee case (Tanco) and one of the Ohio cases (Henry), the claimants maintain that a State’s refusal to recognize out-of-state same-sex marriages illegitimately burdens the right to travel—in the one case by penalizing couples who move into the State by refusing to recognize their marriages, in the other by preventing their child from obtaining a passport because the State refused to provide a birth certificate that included the names of both parents.

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The United States Constitution does not mention a right to travel by name. “Yet the constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe , 526 U.S. 489, 498 (1999) (internal quotation marks omitted). It provides three guarantees: (1) “the right of a citizen of one State to enter and to leave another State”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien” when visiting a second State; and (3) the right of new permanent residents “to be treated like other citizens of that State.” Id. at 500.
Tennessee’s nonrecognition law does not violate these prohibitions. It does not ban, or for that matter regulate, movement into or out of the State other than in the respect all regulations create incentives or disincentives to live in one place or another. Most critically, the law does not punish out-of-state new residents in relation to its own born and bred. Nonresidents are “treated” just “like other citizens of that State,” id., because the State has not expanded the definition of marriage to include gay couples in all settings, whether the individuals just arrived in Tennessee or descend from Andrew Jackson.
The same is true for the Ohio law. No regulation of movement or differential treatment between the newly resident and the longstanding resident occurs. All Ohioans must follow the State’s definition of marriage. With respect to the need to obtain an Ohio birth certificate before obtaining a passport, they can get one. The certificate just will not include both names of the couple. The “just” of course goes to the heart of the matter. In that respect, however, it is due process and equal protection, not the right to travel, that govern the issue.
* * *
This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.
If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people—

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will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
For these reasons, we reverse.

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_________________

DISSENT _________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, dissenting.

“The great tides and currents which engulf the rest of men do not turn aside in their course to pass the judges by.” Benjamin Cardozo, The Nature of the Judicial Process (1921)
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.
In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully

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legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.1
Readers who are familiar with the Supreme Court’s recent opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), and its progeny in the circuit courts, particularly the Seventh Circuit’s opinion in Baskin v. Bogan , 766 F.3d 648, 654 (7th Cir. 2014) (“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.
Indeed, with the exception of Ohio, the defendants in each of these cases—the proponents of their respective “defense of marriage” amendments—spent virtually their entire oral arguments professing what has come to be known as the “irresponsible procreation” theory: that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for “unintended offspring” by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of samesex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony. But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and

1See, e.g., Loving v. Virg inia, 388 U.S. 1, 12 (1967) (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)). The Supreme Court has described the right to marry as “of fundamental importance for all individuals” and as “part of the fundamental ‘right of privacy’ implicit in the Fourteenth Amendment's Due Process Clause.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

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those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.” Id. at 662.
In addressing the “irresponsible procreation” argument that has been referenced by virtually every state defendant in litigation similar to this case, the Baskin court noted that estimates put the number of American children being raised by same-sex parents at over 200,000. Id. at 663. “Unintentional offspring are the children most likely to be put up for adoption,” id. at 662, and because statistics show that same-sex couples are many times more likely to adopt than opposite-sex couples, “same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters.” Id. at 663. Moreover, “[i]f marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents.” Id. at 664.
The concern for the welfare of children that echoes throughout the Baskin opinion can be traced in part to the earlier opinion in Windsor, in which the Supreme Court struck down, as unconstitutional on equal-protection grounds, section 3 of the federal Defense of Marriage Act (DOMA), which defined the term “marriage” for federal purposes as “mean[ing] only a legal union between one man and one woman as husband and wife,” and the term “spouse” as “refer[ring] only to a person of the opposite sex who is a husband or a wife.” Id. at 2683 (citing 1 U.S.C. § 7). Although DOMA did not affect the prerogative of the states to regulate marriage within their respective jurisdictions, it did deprive same-sex couples whose marriages were considered valid under state law of myriad federal benefits. As Justice Kennedy, writing for the majority, pointed out:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency . . . . The differentiation demeans the [samesex] couple, whose moral and sexual choices the Constitution protects, see

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Lawrence [v. Texas], 539 U.S. 558 [(2003)], and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question 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. at 2694.
Looking more closely at the situation of just one of the same-sex couples from the six cases before us brings Justice Kennedy’s words on paper to life. Two of the Michigan plaintiffs, April DeBoer and Jayne Rowse, are unmarried, same-sex partners who have lived as a couple for eight years in a home they own together. They are both trained and employed as nurses, DeBoer in a hospital neonatal department and Rowse in an emergency department at another hospital. Together they are rearing three children but, due to existing provisions in Michigan’s adoption laws, DeBoer and Rowse are prohibited from adopting the children as joint parents because they are unmarried. Instead, Rowse alone adopted two children, who are identified in the record as N and J. DeBoer adopted the third child, who is identified as R.
All three children had difficult starts in life, and two of them are now characterized as “special needs” children. N was born on January 25, 2009, to a biological mother who was homeless, had psychological impairments, was unable to care for N, and subsequently surrendered her legal rights to N. The plaintiffs volunteered to care for the boy and brought him into their home following his birth. In November 2009, Rowse completed the necessary steps to adopt N legally.
Rowse also legally adopted J after the boy’s foster care agency asked Rowse and DeBoer initially to serve as foster parents and legal guardians for him, despite the uphill climb the baby faced. According to the plaintiffs’ amended complaint:
J was born on November 9, 2009, at Hutzel Hospital, premature at 25 weeks, to a drug addicted prostitute. Upon birth, he weighed 1 pound, 9 ounces and tested positive for marijuana, cocaine, opiates and methadone. His birth mother abandoned him immediately after delivery. J remained in the hospital in the NICU for four months with myriad different health complications, and was not expected to live. If he survived, he was not expected to be able to walk, speak or function on a normal level in any capacity. . . . With Rowse and DeBoer’s constant care and medical attention, many of J’s physical conditions have resolved.

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The third adopted child, R, was born on February 1, 2010, to a 19-year-old girl who received no prenatal care and who gave birth at her mother’s home before bringing the infant to the hospital where plaintiff DeBoer worked. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical-therapy program to address these problems.
Both DeBoer and Rowse share in the responsibilities of raising the two four-year-olds and the five-year-old. The plaintiffs even have gone so far as to “coordinate their work schedules so that at least one parent is generally home with the children” to attend to their medical needs and perform other parental duties. Given the close-knit, loving environment shared by the plaintiffs and the children, DeBoer wishes to adopt N and J legally as a second parent, and Rowse wishes to adopt R legally as her second parent.
Although Michigan statutes allow married couples and single persons to adopt, those laws preclude unmarried couples from adopting each other’s children. As a result, DeBoer and Rowse filed suit in federal district court challenging the Michigan adoption statute, Michigan Compiled Laws § 710.24, on federal equal-protection grounds. They later amended their complaint to include a challenge to the so-called Michigan Marriage Amendment, see Mich. Const. art. I, § 25, added to the Michigan state constitution in 2004, after the district court suggested that the plaintiffs’ “injury was not traceable to the defendants’ enforcement of section [710.24]” but, rather, flowed from the fact that the plaintiffs “were not married, and any legal form of same-sex union is prohibited” in Michigan. The case went to trial on the narrow legal issue of whether the amendment could survive rational basis review, i.e., whether it proscribes conduct in a manner that is rationally related to any conceivable legitimate governmental purpose.
The bench trial lasted for eight days and consisted of testimony from sociologists, economists, law professors, a psychologist, a historian, a demographer, and a county clerk. Included in the plaintiffs’ presentation of evidence were statistics regarding the number of children in foster care or awaiting adoption, as well as testimony regarding the difficulties facing same-sex partners attempting to retain parental influence over children adopted in Michigan. Gary Gates, a demographer, and Vivek Sankaran, the director of both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School,

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together offered testimony painting a grim picture of the plight of foster children and orphans in the state of Michigan. For example, Sankaran noted that just under 14,000 foster children reside in Michigan, with approximately 3,500 of those being legal orphans. Nevertheless, same-sex couples in the state are not permitted to adopt such children as a couple. Even though one person can legally adopt a child, should anything happen to that adoptive parent, there is no provision in Michigan’s legal framework that would “ensure that the children would necessarily remain with the surviving non-legal parent,” even if that parent went through the arduous, time-consuming, expensive adoption-approval process. Thus, although the State of Michigan would save money by moving children from foster care or state care into adoptive families, and although same-sex couples in Michigan are almost three times more likely than opposite-sex couples to be raising an adopted child and twice as likely to be fostering a child, there remains a legal disincentive for same-sex couples to adopt children there.
David Brodzinsky, a developmental and clinical psychologist, for many years on the faculty at Rutgers University, reiterated the testimony that Michigan’s ban on adoptions by same-sex couples increases the potential risks to children awaiting adoptions. The remainder of his testimony was devoted to a systematic, statistic-based debunking of studies intimating that children raised in gay or lesbian families, ipso facto, are less well-adjusted than children raised by heterosexual couples. Brodzinsky conceded that marriage brings societal legitimatization and stability to children but noted that he found no statistically significant differences in general characteristics or in development between children raised in same-sex households and children raised in opposite-sex households, and that the psychological well-being, educational development, and peer relationships were the same in children raised in gay, lesbian, or heterosexual homes.
Such findings led Brodzinsky to conclude that the gender of a parent is far less important than the quality of the parenting offered and that family processes and resources are far better predictors of child adjustment than the family structure. He testified that those studies presuming to show that children raised in gay and lesbian families exhibited more adjustment problems and decreased educational achievement were seriously flawed, simply because they relied on statistics concerning children who had come from families experiencing a prior traumatic breakup of a failed heterosexual relationship. In fact, when focusing upon children of

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lesbian families created through donor insemination, Brodzinsky found no differences in comparison with children from donor insemination in heterosexual families or in comparison with children conceived naturally in heterosexual families. According to Brodzinsky, such a finding was not surprising given the fact that all such children experienced no family disruption in their past. For the same reason, few differences were noted in studies of children adopted at a very early age by same-sex couples and children naturally born into heterosexual families.
Nancy Cott, a professor of history at Harvard University, the director of graduate studies there, and the author of Public Vows: A History of Marriage and the Nation, also testified on behalf of the plaintiffs. She explained how the concept of marriage and the roles of the marriage partners have changed over time. As summarized by Cott, the wife’s identity is no longer subsumed into that of her husband, interracial marriages are legal now that the antiquated, racist concept of preserving the purity of the white race has fallen into its rightful place of dishonor, and traditional gender-assigned roles are no longer standard. Cott also testified that solemnizing marriages between same-sex partners would create tangible benefits for Michigan citizens because spouses would then be allowed to inherit without taxation and would be able to receive retirement, Social Security, and veteran’s benefits upon the death of an eligible spouse. Moreover, statistics make clear that heterosexual marriages have not suffered or decreased in number as a result of states permitting same-sex marriages. In fact, to the contrary, Cott noted that there exists some evidence that many young people now refuse to enter into heterosexual marriages until their gay or lesbian friends can also enjoy the legitimacy of state-backed marriages.
Michael Rosenfeld, a Stanford University sociologist, testified about studies he had undertaken that confirmed the hypothesis that legitimation of same-sex relationships promotes their stability. Specifically, Rosenfeld’s research established that although same-sex couples living in states without recognition of their commitments to each other did have a higher breakup rate than heterosexual married couples, the break-up rates of opposite-sex married couples and same-sex couples in recognized civil unions were virtually identical. Similarly, the break-up rates of same-sex couples not living in a state-recognized relationship approximated the break-up rate of heterosexual couples cohabiting without marriage.

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Rosenfeld also criticized the methodology of studies advanced by the defendants that disagreed with his conclusions. According to Rosenfeld, those critical studies failed to take into account the stability or lack of stability of the various groups examined. For example, he testified that one such study compared children who had experienced no adverse family transitions with children who had lived through many such traumatic family changes. Not surprisingly, children from broken homes with lower-income-earning parents who had less education and lived in urban areas performed more poorly in school than other children. According to Rosenfeld, arguments to the contrary that failed to control for such differences, taken to their extreme, would lead to the conclusion that only high-income individuals of Asian descent who earned advanced degrees and lived in suburban areas should be allowed to marry.
To counteract the testimony offered by the plaintiffs’ witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs’ experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study:
[Dr. Regnerus’s opinions] do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that the findings from Dr. Regnerus’[s] work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.
In fact, the record before the district court reflected clearly that Regnerus’s study had been funded by the Witherspoon Institute, a conservative “think tank” opposed to same-sex marriage, in order to vindicate “the traditional understanding of marriage.”
Douglas Allen, the co-author of another study with Catherine Pakaluk and Joe Price, testified that children raised by same-sex couples graduated from high school at a significantly

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lower rate than did children raised by heterosexual married couples. On cross-examination, however, Allen conceded that “many of those children who . . . were living in same-sex households had previously lived in an opposite sex household where their parents had divorced, broken up, some kind of separation or transition.” Furthermore, Allen provided evidence of the bias inherent in his study by admitting that he believed that engaging in homosexual acts “means eternal separation from God, in other words[,] going to hell.”
The final study advanced by the defendants was conducted by Loren Marks, a professor in human ecology at Louisiana State University, in what was admittedly an effort to counteract the “groupthink” portrayed by perceived “liberal psychologists.” But although Marks criticized what he perceived to be “a pronounced liberal lean on social issues” by many psychologists, he revealed his own bias by acknowledging that he was a lay clergyman in the Church of Jesus Christ of Latter Day Saints (LDS) and that the LDS directive “for a couple to be married by God’s authority in God’s house, the holy temple, and then to have children per the teaching that God’s commandment for his children to multiply and replenish the earth remains in force.”
Presented with the admitted biases and methodological shortcomings prevalent in the studies performed by the defendant’s experts, the district court found those witnesses “largely unbelievable” and not credible. DeBoer v. Snyder, 973 F. Supp.2d 757, 768 (E.D. Mich. 2014). Proceeding to a legal analysis of the core issue in the litigation, the district court then concluded that the proscriptions of the marriage amendment are not rationally related to any legitimate state interest. Addressing the defendants’ three asserted rational bases for the amendment,2 the district court found each such proffered justification without merit.
Principally, the court determined that the amendment is in no way related to the asserted state interest in ensuring an optimal environment for child-rearing. The testimony adduced at trial clearly refuted the proposition that, all things being equal, same-sex couples are less able to provide for the welfare and development of children. Indeed, marriage, whether between samesex or opposite-sex partners, increases stability within the family unit. By permitting same-sex

2In the district court, the state did not advance an “unintended pregnancy” argument, nor was that claim included in the state’s brief on appeal, although counsel did mention it during oral argument. In terms of “optimal environment,” the state emphasized the need for children to have “both a mom and a dad,” because “men and women are different,” and to have a “biological connection to their parents.”

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couples to marry, that stability would not be threatened by the death of one of the parents. Even more damning to the defendants’ position, however, is the fact that the State of Michigan allows heterosexual couples to marry even if the couple does not wish to have children, even if the couple does not have sufficient resources or education to care for children, even if the parents are pedophiles or child abusers, and even if the parents are drug addicts.
Furthermore, the district court found no reason to believe that the amendment furthers the asserted state interests in “proceeding with caution” before “altering the traditional definition of marriage” or in “upholding tradition and morality.” As recognized by the district court, there is no legitimate justification for delay when constitutional rights are at issue, and even adherence to religious views or tradition cannot serve to strip citizens of their right to the guarantee of equal protection under the law.
Finally, and relatedly, the district court acknowledged that the regulation of marriage traditionally has been seen as part of a state’s police power but concluded that this fact cannot serve as an excuse to ignore the constitutional rights of individual citizens. Were it otherwise, the court observed, the prohibition in Virginia and in many other states against miscegenation still would be in effect today. Because the district court found that “regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail,” the court held the amendment and its implementing statutes “unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Id. at 775.
If I were in the majority here, I would have no difficulty in affirming the district court's opinion in DeBoer. The record is rich with evidence that, as a pragmatic matter, completely refutes the state’s effort to defend the ban against same-sex marriage that is inherent in the marriage amendment. Moreover, the district court did a masterful job of supporting its legal conclusions. Upholding the decision would also control the resolution of the other five cases that were consolidated for purposes of this appeal.
Is a thorough explication of the legal basis for such a result appropriate? It is, of course. Is it necessary? In my judgment, it is not, given the excellent—even eloquent—opinion in DeBoer and in the opinions that have come from four other circuits in the last few months that

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have addressed the same issues involved here: Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014) (holding Utah statutes and state constitutional amendment banning same-sex marriage unconstitutional under the Fourteenth Amendment); Bostic v. Schaefer , 760 F.3d 352 (4th Cir. 2014) (same, Virginia); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (same, Indiana statute and Wisconsin state constitutional amendment); and Latta v. Otter , Nos. 14-35420, 14-35421, 1217668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (same, Idaho and Nevada statutes and state constitutional amendments).3
Kitchen was decided primarily on the basis of substantive due process, based on the Tenth Circuit’s determination that under Supreme Court precedents, the right to marry includes the right to marry the person of one’s choice. The court located the source of that right in Supreme Court opinions such as Maynard v. Hill , 125 U.S. 190, 205 (1888) (recognizing marriage as “the most important relation in life”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that the liberty protected by the Fourteenth Amendment includes the freedom “to marry, establish a home and bring up children”); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Zablocki, 434 U.S. at 384 (recognizing that “the right to marry is of fundamental importance for all individuals”); and Turner v. Safley, 482 U.S. 78, 95-96 (1987) (in the context of a prison inmate’s right to marry, “[such] marriages are expressions of emotional support and public commitment[,] . . . elements [that] are important and significant aspects of the marital relationship” even in situations in which procreation is not possible). Kitchen, 755 F.3d at 1209-11. The Tenth Circuit also found that the Utah laws violated equal protection, applying strict scrutiny because the classification in question impinged on a fundamental right. In doing so, the court rejected the state’s reliance on various justifications offered to establish a compelling state interest in denying marriage to same-sex couples, finding “an insufficient causal connection” between the prohibition on same-sex marriage and the state’s “articulated goals,” which included a purported interest in fostering biological reproduction, encouraging optimal childrearing, and maintaining gendered parenting styles. Id. at 1222. The court also

3On October 6, the Supreme Court denied certiorari and lifted stays in Kitchen, Bostic, and Baskin, putting into effect the district court injunctions entered in each of those three cases. A stay of the mandate in the Idaho case in Latta also has been vacated, and the appeal in the Nevada case is not being pursued. As a result, marriage licenses are currently being issued to same-sex couples throughout most—if not all—of the Fourth, Seventh, Ninth, and Tenth Circuits.

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rejected the state’s prediction that legalizing same-sex marriage would result in social discord, citing Watson v. City of Memphis , 373 U.S. 526, 535 (1963) (rejecting “community confusion and turmoil” as a reason to delay desegregation of public parks). Id. at 1227.
The Fourth Circuit in Bostic also applied strict scrutiny to strike down Virginia’s samesex-marriage prohibitions as infringing on a fundamental right, citing Loving and observing that “[o]ver the decades, the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.” 760 F.3d at 376. In a thoughtful opinion, the court analyzed each of the state’s proffered interests: maintaining control of the “definition of marriage,” adhering to the “tradition of opposite-sex marriage,” “protecting the institution of marriage,” “encouraging responsible procreation,” and “promoting the optimal childrearing environment.” Id. at 378. In each instance, the court found that there was no link between the state’s purported “compelling interest” and the exclusion of same-sex couples “from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.” Id. at 384. As to the state’s interest in federalism, the court pointed to the long-recognized principle that “[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons,” id. at 379 (quoting Windsor, 133 S. Ct. at 2691), and highlighted Windsor’s reiteration of “Loving’s admonition that the states must exercise their authority without trampling constitutional guarantees.” Id. Addressing the state’s contention that marriage under state law should be confined to opposite-sex couples because unintended pregnancies cannot result from same-sex unions, the court noted that “[b]ecause same-sex couples and infertile opposite-sex couples are similarly situated, the Equal Protection Clause counsels against treating these groups differently.” Id. at 381-82 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
The Seventh Circuit’s Baskin opinion is firmly grounded in equal-protection analysis. The court proceeded from the premise that “[d]iscrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.” 766 F.3d at 654. But the court also found that “discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is

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not subjected to heightened scrutiny.” Id. at 656. This conclusion was based on the court’s rejection of “the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended,” an argument “so full of holes that it cannot be taken seriously.” Id. (emphasis in original). The court therefore found it unnecessary to engage in “the more complex analysis found in more closely balanced equal-protection cases” or under the due process clause of the Fourteenth Amendment.” Id. at 656-57.
The Ninth Circuit’s opinion in Latta also focuses on equal-protection principles in finding that Idaho’s and Nevada’s statutes and constitutional amendments prohibiting same-sex marriage violate the Fourteenth Amendment. Because the Ninth Circuit had recently held in SmithKline Beecham Corp. v. Abbott Labs. , 740 F.3d 471, 481 (9th Cir. 2014), that classifications based on sexual orientation are subject to heightened scrutiny, a conclusion the court drew from its reading of Windsor to require assessment more rigorous than rational-basis review, the path to finding an equal-protection violation was less than arduous. As did the Tenth Circuit in Kitchen, the court in Latta found it “wholly illogical” to think that same-sex marriage would affect opposite-sex couples’ choices with regard to procreation. Latta, 2014 WL 4977682, *5 (citing Kitchen, 755 F.3d at 1223).
These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of samesex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.

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Baker v. Nelson
If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972), is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced.4 The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes— not facetiously, one hopes—“that was then; this is now.”
At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans , 517 U.S. 620 (1996), nor in Lawrence v. Texas , 539 U.S. 558 (2003), and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. See Windsor v. United States, 699 F.3d 169, 189, 192-95 (2d Cir. 2012) (Straub, J., dissenting in part and concurring in part). And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor,5 neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. In addition, the order was not cited in the three orders of October 6, 2014, denying certiorari in Kitchen, Bostic, and Baskin. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary

4See Doe v. Ventura, No. 01-489, 2001 WL 543734 (D. Ct. of Hennepin Cnty. May 15, 2001) (unreported). 5See United States v. Windsor, Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives, No. 12-307, 2013 WL 267026 at 16-19, 25-26 (Jan. 22, 2013).

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disposition by the Supreme Court. See Hicks v. Miranda , 422 U.S. 332, 344 (1975) (internal quotation marks and citation omitted).

Definition of Marriage
The majority’s “original meaning” analysis strings together a number of case citations but can tell us little about the Fourteenth Amendment, except to assure us that “the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage.” The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967. Despite a civil war, the end of slavery, and ratification of the Fourteenth Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not by the democratic election process to which the majority suggests we should defer regarding discrimination based on sexual orientation.
Moreover, the majority’s view of marriage as “a social institution defined by relationships between men and women” is wisely described in the plural. There is not now and never has been a universally accepted definition of marriage. In early Judeo-Christian law and throughout the West in the Middle Ages, marriage was a religious obligation, not a civil status. Historically, it has been pursued primarily as a political or economic arrangement. Even today, polygynous marriages outnumber monogamous ones—the practice is widespread in Africa, Asia, and the Middle East, especially in countries following Islamic law, which also recognizes temporary marriages in some parts of the world. In Asia and the Middle East, many marriages are still arranged and some are even coerced.
Although some of the older statutes regarding marriage cited by the majority do speak of the union of “a man and a woman,” the picture hardly ends there. When Justice Alito noted in Windsor that the opponents of DOMA were “implicitly ask[ing] us to endorse [a more expansive definition of marriage and] to reject the traditional view,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting), he may have been unfamiliar with all that the “traditional view” entailed, especially for women who were subjected to coverture as a result of Anglo-American common law.

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Fourteenth Amendment cases decided by the Supreme Court in the years since 1971 that
“invalidat[ed] various laws and policies that categorized by sex have been part of a
transformation that has altered the very institution at the heart of this case, marriage.” Latta,
2014 WL 4977682, at *20 (Berzon, J., concurring).
Historically, marriage was a profoundly unequal institution, one that imposed distinctly different rights and obligations on men and women. The law of coverture, for example, deemed the “the husband and wife . . . one person,” such that “the very being or legal existence of the woman [was] suspended . . . or at least [was] incorporated and consolidated into that of the husband” during the marriage. 1 William Blackstone, Commentaries on the Laws of England 441 (3d rev. ed. 1884). Under the principles of coverture, “a married woman [was] incapable, without her husband’s consent, of making contracts . . . binding on her or him.” Bradwell v. Illinois , 83 U.S. 130, 141 (1872) (Bradley, J., concurring). She could not sue or be sued without her husband’s consent. See, e.g., Nancy F. Cott, Public Vows: A History of Marriage and the Nation 11–12 (2000). Married women also could not serve as the legal guardians of their children. Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (plurality op.).
Marriage laws further dictated economically disparate roles for husband and wife. In many respects, the marital contract was primarily understood as an economic arrangement between spouses, whether or not the couple had or would have children. “Coverture expressed the legal essence of marriage as reciprocal: a husband was bound to support his wife, and in exchange she gave over her property and labor.” Cott, Public Vows, at 54. That is why “married women traditionally were denied the legal capacity to hold or convey property . . . .” Frontiero, 411 U.S. at 685. Notably, husbands owed their wives support even if there were no children of the marriage. See, e.g., Hendrik Hartog, Man and Wife in America: A History 156 (2000).
There was also a significant disparity between the rights of husbands and wives with regard to physical intimacy. At common law, “a woman was the sexual property of her husband; that is, she had a duty to have intercourse with him.” John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 79 (3d ed. 2012). Quite literally, a wife was legally “the possession of her husband, . . . [her] husband’s property.” Hartog, Man and Wife in America, at 137. Accordingly, a husband could sue his wife’s lover in tort for “entic[ing]” her or “alienat[ing]” her affections and thereby interfering with his property rights in her body and her labor. Id. A husband’s possessory interest in his wife was undoubtedly also driven by the fact that, historically, marriage was the only legal site for licit sex; sex outside of marriage was almost universally criminalized. See, e.g., Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex , 115 Yale L.J. 756, 763–64 (2006).
Notably, although sex was strongly presumed to be an essential part of marriage, the ability to procreate was generally not. See, e.g. , Chester Vernier, American

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Family Laws: A Comparative Study of the Family Law of the Forty-Eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931) (1931) I § 50, 239–46 (at time of survey, grounds for annulment typically included impotency, as well as incapacity due to minority or “non-age”; lack of understanding and insanity; force or duress; fraud; disease; and incest; but not inability to conceive); II § 68, at 38–39 (1932) (at time of survey, grounds for divorce included “impotence”; vast majority of states “generally held that impotence. . . does not mean sterility but must be of such a nature as to render complete sexual intercourse practically impossible”; and only Pennsylvania “ma[d]e sterility a cause” for divorce).
The common law also dictated that it was legally impossible for a man to rape his wife. Men could not be prosecuted for spousal rape. A husband’s “incapacity” to rape his wife was justified by the theory that “‘the marriage constitute[d] a blanket consent to sexual intimacy which the woman [could] revoke only by dissolving the marital relationship.’” See, e.g. , Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape , 88 Calif. L. Rev 1373, 1376 n.9 (2000) (quoting Model Penal Code and Commentaries, § 213.1 cmt. 8(c), at 342 (Official Draft and Revised Comments 1980)).
Concomitantly, dissolving the marital partnership via divorce was exceedingly difficult. Through the mid-twentieth century, divorce could be obtained only on a limited set of grounds, if at all. At the beginning of our nation’s history, several states did not permit full divorce except under the narrowest of circumstances; separation alone was the remedy, even if a woman could show “cruelty endangering life or limb.” Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and th e Law in th e Nineteenth-Century South 33 (1995); see also id. 32–33. In part, this policy dovetailed with the grim fact that, at English common law, and in several states through the beginning of the nineteenth century, “a husband’s prerogative to chastise his wife”—that is, to beat her short of permanent injury—was recognized as his marital right. Reva B. Siegel, “The Rule of Love”: Wife Beati ng as Prerogative and Privacy , 105 Yale L.J. 2117, 2125 (1996).
Id. at *20-21.
Women were not the only class deprived of equal status in “traditional marriage.” Until
the end of the Civil War in 1865, slaves were prohibited from contracting legal marriages and
often resorted to “jumping the broomstick” to mark a monogamous conjugal relationship.
Informal “slave marriage” was the rule until the end of the war, when Freedmen’s Bureaus began
issuing marriage licenses to former slaves who could establish the existence of long-standing
family relationships, despite the fact that family members were sometimes at great distances
from one another. The ritual of jumping the broomstick, thought of in this country in terms of

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slave marriages, actually originated in England, where civil marriages were not available until enactment of the Marriage Act of 1837. Prior to that, the performance of valid marriages was the sole prerogative of the Church of England, unless the participants were Quakers or Jews. The majority’s admiration for “traditional marriage” thus seems misplaced, if not naïve. The legal status has been through so many reforms that the marriage of same-sex couples constitutes merely the latest wave in a vast sea of change.

Rational-Basis Review.
The principal thrust of the majority’s rational-basis analysis is basically a reiteration of the same tired argument that the proponents of same-sex-marriage bans have raised in litigation across the country: marriage is about the regulation of “procreative urges” of men and women who therefore do not need the “government’s encouragement to have sex” but, instead, need encouragement to “create and maintain stable relationships within which children may flourish.” The majority contends that exclusion of same-sex couples from marriage must be considered rational based on “the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended children.” As previously noted, however, this argument is one that an eminent jurist has described as being “so full of holes that it cannot be taken seriously.” Baskin, 766 F.3d at 656 (Posner, J.).
At least my colleagues are perceptive enough to acknowledge that “[g]ay couples, no less than straight couples, are capable of sharing such relationships . . . [and] are capable of raising stable families.” The majority is even persuaded that the “quality of [same-sex] relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment.” All of which, the majority surmises, “supports the policy argument made by many that marriage laws should be extended to gay couples.” But this conclusion begs the question: why reverse the judgments of four federal district courts, in four different states, and in six different cases that would do just that?
There are apparently two answers; first, “let the people decide” and, second, “give it time.” The majority posits that “just as [same-sex marriage has been adopted in] nineteen states and the District of Columbia,” the change-agents in the Sixth Circuit should be “elected

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legislators, not life-tenured judges.” Of course, this argument fails to acknowledge the impracticalities involved in amending, re-amending, or un-amending a state constitution.6 More to the point, under our constitutional system, the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite. As the Supreme Court has noted, “It is plain that the electorate as a whole, whether by referendum or otherwise, could not order [government] action violative of the Equal Protection Clause, and the [government] may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic.” City of Cleburne , 473 U.S. at 448 (internal citation omitted).
Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize samesex marriage are comparable to the 34 states that permitted interracial marriage when the

6In Tennessee, for example, a proposed amendment must first be approved by a simple majority of both
houses. In the succeeding legislative session, which can occur as long as a year or more later, the same proposed amendment must then be approved “by two-thirds of all the members elected to each house.” Tenn. Const. art. XI, § 3. The proposed amendment is then presented “to the people at the next general election in which a Governor is to be chosen,” id., which can occur as long as three years or more later. If a majority of all citizens voting in the gubernatorial election also approve of the proposed amendment, it is considered ratified. The procedure for amending the constitution by convention can take equally long and is, if anything, more complicated. In Michigan, a constitutional convention, one of three methods of amendment, can be called no more often than every 16 years. See Mich. Const. art. XII, § 3.

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Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.
The second contention is that we should “wait and see” what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for “only” ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, the “states as laboratories of democracy” metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage. Yet, whenever the expansion of a constitutional right is proposed, “proceed with caution” seems to be the universal mantra of the opponents. The same argument was made by the State of Virginia in Loving. And, in Frontiero v. Richardson , 411 U.S. 677 (1973), the government asked the Court to postpone applying heightened scrutiny to allegations of gender discrimination in a statute denying equal benefits to women until the Equal Rights Amendment could be ratified. If the Court had listened to the argument, we would, of course, still be waiting. One is reminded of the admonition in Martin Luther King, Jr.’s “Letter from Birmingham Jail” (1963): “For years now I have heard the word "Wait”! . . . [But h]uman progress never rolls in on wheels of inevitability . . . [and] time itself becomes an ally of the forces of social stagnation.”

Animus
Finally, there is a need to address briefly the subject of unconstitutional animus, which the majority opinion equates only with actual malice and hostility on the part of members of the electorate. But in many instances involving rational-basis review, the Supreme Court has taken a more objective approach to the classification at issue, rather than a subjective one. Under such an analysis, it is not necessary for a court to divine individual malicious intent in order to find unconstitutional animus. Instead, the Supreme Court has instructed that an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group, for example, when legislation is justified by the bare desire to exclude an unpopular group from a social institution or arrangement. In City of Cleburne , for example, the Court struck down a zoning regulation that was justified simply by the “negative attitude” of property owners in the community toward individuals with intellectual disabilities, not necessarily by actual malice toward an unpopular

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minority. In doing so, the Court held that “the City may not avoid the strictures of the [Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic,” 473 U.S. at 448, and cited Palmore v. Sidoti , 466 U.S. 429, 433 (1984), for the proposition that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” In any event, as the majority here concedes, we as a country have such a long history of prejudice based on sexual orientation that it seems hypocritical to deny the existence of unconstitutional animus in the rational-basis analysis of the cases before us.
To my mind, the soundest description of this analysis is found in Justice Stevens’s separate opinion in City of Cleburne:
In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a “tradition of disfavor” by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a “rational basis.”
Id. at 453 (Stevens, J., concurring) (footnotes omitted). I would apply just this analysis to the constitutional amendments and statutes at issue in these cases, confident that the result of the inquiry would be to affirm the district courts’ decisions in all six cases. I therefore dissent from the majority’s decision to overturn those judgments.
Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.
More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the

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authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 14-1341
APRIL DEBOER, et al., Plaintiffs - Appellees,
v.

FILED
Nov 06, 2014
DEBORAH S. HUNT, Clerk

RICHARD SNYDER, Governor, State of Michigan, in his official capacity, et al.,
Defendants - Appellants.

Before: DAUGHTREY, SUTTON, and COOK, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is REVERSED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 1 of 20 PAGEID #: 1721

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES OBERGEFELL, et al.,

:

Case No. 1:13-cv-501

:

Plaintiffs,

:

Judge Timothy S. Black

vs. RICHARD HODGES, et al.,
Defendants.

:

:

PLAINTIFFS’ SUBSTIUTE

:

MOTION FOR ATTORNEY

:

FEES AND EXPENSES AND MEMORANDUM IN SUPPORT

:

MOTION On February 2014, Plaintiffs filed a motion for attorney fees and expenses for work performed through December 30, 2013 in Obergefell v. Hodges. (Doc. 70). The parties agreed to stay the fee motion until final resolution of the case. Plaintiffs now file a substitute motion for attorney fees and expenses for all work related to the Obergefell case through September 10, 2015. After this court issued its injunction in the companion case, Henry v. Hodges, SDOH Case No. 1:14-cv-129, the parties agreed to stay the fee motion until after the appeals were concluded. After Defendant Hodges appealed the decisions in both Obergefell and Henry, the Sixth Circuit consolidated the cases on appeal. The Supreme Court consolidated the cases as well. The ACLU joined the Obergefell litigation team to work on the appeal. Susan Sommer, National Director of Constitutional Litigation for Lambda Legal Defense and Education Fund, Ellen Essig and Lisa Meeks were all attorneys on the Henry litigation team. Once Obergefell and Henry were consolidated on appeal, the attorneys who worked on both cases billed their time to either the Obergefell case or the Henry case. The attorneys who worked on only one case billed their time to that one case. Once the cases were consolidated on appeal the legal research, legal theories, briefing, and arguments overlapped. Therefore, since

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the work and hours expended benefited both cases, this motion seeks fees for the time spent on
both Obergefell and Henry by all attorneys who worked on either or both cases.
The Obergefell and Henry Plaintiffs, pursuant to Local Rule 54.2 and 42 U.S.C. §1988,
seek $ 1,096,142.50 in fees and $ $51,360.12 in expenses for a total fee request for all fees and
expenses through September 10, 2015 of $1,147,502.60. In addition, the parties seek a fee enhancement of 50%. Plaintiffs seek fees only from Defendant Hodges.1 The amounts are
explained in detail in the memorandum below and in the attached declarations and exhibits.
MEMORANDUM IN SUPPORT
For the reasons set forth more fully below, Plaintiffs respectfully submit that the hours
expended in this case were reasonable given the difficulty of the case and the importance of the
issues. The hourly rates requested by each attorney and staff member are reasonable given their
background and experience and the market rates in Cincinnati and New York.
I. Standard For Awarding Attorney Fees
This court, in a recent decision, succinctly summarized the purpose of awarding attorney
fees in a case like this:
Section 1983 is derived from the Civil Rights Act of 1871. Under Section 1983, every person who, under color of law, deprives persons of federal rights is liable for such deprivation. Plaintiffs‘ § 1983 claims in this case were brought to enforce the federal rights of equal protection and due process of law, rights that derive from the Fourteenth Amendment of the U.S. Constitution. To encourage private enforcement of federal rights like these, Congress enacted the Civil Rights attorney‘s Fees Awards Act, 42 U.S.C. § 1988. Perdue v. Kenny A., 559 U.S. 542, 550 (2010). That Act provides that ―[i]n any action or proceeding to enforce a provision of [§] 1983 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney‘s fee as part of the costs.‖ 42 U.S.C. § 1988(b). Thus, although the general rule in our legal system is
1 Plaintiffs do not seek fees from Defendant Dr. Jones since neither she nor the City defended Article XV, § 11 of the Ohio Constitution or Ohio Rev. Code § 3101.01(C) because those laws discriminate against same-sex couples. In fact, the City of Cincinnati had proclaimed July 11, 2013 as ―John Arthur and James Obergefell Day,‖ in recognition of the Plaintiffs‘ marriage. (See, Dr. Jones‘ Memorandum in Response to Motion for Temporary Restraining Order, Doc. 10.)
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that each party must pay its own attorney‘s fees and expenses, Congress made an exception to this rule to ―ensure ‗effective access to the judicial process‘ for persons with civil rights grievances.‖ Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Hunter v. Hamilton Cnty. Bd. of Elections, 1:10CV820, 2013 WL 5467751 (S.D. Ohio Sept. 30, 2013) *7. The criteria for the award of attorney‘s fees are set forth in Blum v. Stevenson, 465 U.S. 886, 104 S.Ct. 1541 (1984), Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933 (1983), City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2368 (1992), and Northcross v. Bd. of Ed. of Memphis School District, 611 F.2d 624 (6th Cir. 1979) (overruled on other grounds). Once a plaintiff crosses the statutory threshold and is found to be a ―prevailing party,‖ the plaintiff is ―entitled to recover attorneys‘ fees for ‗all time reasonably spent on a matter.‘‖ Northcross, 611 F.2d at 636. To be a prevailing party, a party must ―succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.‖ Phelan v. Bell, 8 F. 3d 369 (6th Cir. 1993). ―A plaintiff ‗prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.‖ Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). The Supreme Court in Farrar went on to clarify that ―[n]o material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant.‖ Id. at 113. The Sixth Circuit accords considerable deference to a district court's determination of whether a plaintiff is a prevailing party because the district court has ―a ring-side view of the underlying proceedings.‖ McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010).
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This Court entered judgment for the Obergefell Plaintiffs and permanently enjoined Defendants from enforcing Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101.01(C) as applied to Plaintiffs. (Obergefell Judgment Doc. 67). The Court also declared Ohio Const. Art. XV, § 11 and Ohio Rev. Code. § 3101.01(C) unconstitutional as applied to Plaintiffs. (Obergefell Declaratory Judgment and Permanent Injunction Doc. 66).
In Henry, this Court entered a final declaratory judgment and permanent injunction. The Court found that Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101.01(C) violated rights secured by the Fourteenth Amendment to the United States Constitution. The Court declared those portions of Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101.01(C) and any other provisions of the Ohio Revised Code that may be relied on to deny legal recognition to the marriages of same-sex couples validly entered in other jurisdictions, violate rights secured by the Fourteenth Amendment. The Court permanently enjoined Defendants from enforcing these unconstitutional laws to deny recognition of same sex marriages outside Ohio.
On appeal the Sixth Circuit reversed the judgment in both cases. Plaintiffs filed petitions for certiorari in both cases. The Supreme Court accepted certiorari and entered judgment for Plaintiffs in these Ohio cases and the consolidated marriage cases from Kentucky, Michigan, and Tennessee. The Supreme Court reversed and held that the Fourteenth Amendment requires states, including Ohio, to recognize valid out of state same sex marriages. On appeal, Plaintiffs secured all the relief they requested and were granted by the district court. Therefore it is undisputed that the Obergefell and Henry Plaintiffs are prevailing parties in this Section 1983 action. Attorney fees and costs are authorized pursuant to 42 U.S.C. §1988, which provides that the Court may award ―a reasonable attorney‘s fee‖ to prevailing parties as part of costs. Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933 (1983) (―The standards set forth in this opinion are
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generally applicable in all cases in which Congress has authorized an award of fees to a
‗prevailing party‘‖).
II. The Hours Expended By Plaintiffs’ Counsel Were Reasonable
The Supreme Court has recognized the method for calculating an appropriate award of
attorney fees is ―the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.‖ Hensley, 461 U.S. at 433. This is known as the Lodestar calculation.
The result of this calculation ―produces an award that roughly approximates the fee that the prevailing party would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.‖ Perdue v. Kenny A., 559 U.S. 542, 551 (2010) (emphasis in the original). The lodestar usually is strongly presumed to yield a reasonable fee. City of Burlington v. Dague, 505 U.S. 557, 562 (1992). A reasonable fee is one which is adequate to attract competent counsel, but does not produce a windfall to attorneys. See Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007).
Hunter v. Hamilton Cnty. Bd. of Elections, 1:10CV820, 2013 WL 5467751 (S.D. Ohio Sept. 30,
2013) *14.
The Court should indicate on the record the number of hours it finds the prevailing
party‘s attorneys have expended on the case. This finding must first take into account the
affidavits of counsel. The hours claimed need not be automatically accepted by the court, but to
the extent that hours are rejected, the court must indicate some reason for its action. Hours may
be cut for duplication, padding or frivolous claims. If a court decides to eliminate hours of
service adequately documented by the attorneys, it must identify those hours and articulate its
reasons for their elimination. See Northcross, supra.
The time spent on this action is reasonable:
The question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.
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Wooldridge v. Marlene Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990) abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001). Under this test, all hours expended in this action by all Plaintiffs‘ attorneys were reasonable. However, all hours worked are not included in this motion. All attorneys exercised billing judgment and eliminated unnecessary, excessive, or duplicate hours. In fact the ACLU did not bill for hundreds of hours several of its attorneys put into the case.
Mr. Gerhardstein, Ms. Branch, and their staff recorded their time contemporaneously with the service. The compilation of attorneys‘ time records from Gerhardstein & Branch Co., LPA is attached to the Gerhardstein Declaration as Exhibit 1. The ACLU hours are attached to Mr. Essek‘s declaration. Ms. Meeks, Ms. Essig and Ms. Summer attached their hours to their respective declarations. Plaintiffs‘ attorneys exercised billing judgment at the time of entry of the times and did not record every minute spent on the case. The hours and work performed are explained in the declarations and attachments thereto.
Alphonse Gerhardstein, the lead attorney in these cases, has considerable background, experience, and skill in representing plaintiffs in civil rights cases in federal court. (See Gerhardstein Declaration (Doc. 70-2 Ex. 1). Alphonse A. Gerhardstein is a graduate of the New York University School of Law and has been admitted to practice in Ohio and the federal courts since 1976. He was admitted to practice before the U.S. Supreme Court in 1984. For the past 39 years, most of his practice has been devoted to civil rights litigation. He has been counsel or cocounsel on hundreds of civil rights cases filed in the state and federal courts. Based on Mr. Gerhardstein‘s background, experience and skill, the hours requested in the fee application have been necessarily expended. The fees requested comport with and are reasonable in light of the factors contained in Ohio Rule of Professional Conduct 1.5 insofar as they accurately reflect the
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time and labor required in the prosecution of this matter, the difficulty of the questions involved, the skill required to perform the work properly, they comport with the fees customarily charged by others for similar legal services, and they are appropriate in light of the results obtained.
Mr. James Esseks was the lead attorney for the ACLU. The ACLU came into the Obergefell case on appeal as additional co-counsel. Mr. Esseks is Litigation Director of the ACLY Foundation‘s Lesbian, Gay, Bisexual, Transgender, and HIV Project, based in New York, New York. As Director, he oversees both the project‘s legal program and other aspects of its advocacy, including lobbying, administrative advocacy, organizing, and education of the public about issues affecting lesbian, gay, bisexual, or transgender (―LGBT‖) people or people living with HIV. Mr. Esseks concentrates his practice in constitutional litigation generally and specifically in constitutional claims about the rights of LGBT people. He has been counsel in numerous constitutional cases about the freedom to marry for same-sex couples, including United States v. Windsor, 133 S. Ct. 2675 (striking down the Defense of Marriage Act); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied 2014 WL 3924685 (Oct. 6, 2014) (striking down Virginia‘s ban on marriage for same-sex couples); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert denied 2014 WL 3924685 (Oct. 6, 2014) (striking down Indiana‘s ban on marriage for same-sex couples) (I was counsel in Fujii v. Commissioner, which was consolidated with Baskin on appeal), among others. He has also been counsel in cases challenging state laws barring lesbians and gay men from being adoptive or foster parents. Along with his co-counsel Chase Strangio, and numerous other attorneys from the ACLU, Mr. Esseks worked on both the Obergefell appeal and the Bourke v. Beshear and Love v. Beshear marriage equality cases in Kentucky.
Susan Sommer was the lead attorney for Lambda Legal Defense and Education Fund.
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Ms. Sommer, along with Ms. Meeks and Ms. Essig were co-counsel on the Henry case. Ms. Sommer is the National Director of Constitutional Litigation for Lambda Legal Defense and Education Fund. Lambda Legal is the nation‘s oldest and largest national organization committed to achieving full recognition of the civil rights of lesbian, gay, bisexual, and transgender (―LGBT‖) people, and those with HIV through impact litigation, education, and public policy work. Ms. Sommer is also co-head of Lambda Legal‘s Families Program Priority Area, having also served as head of its Parents and Children Program Priority Area and its Youth in Out-of-Home Care Program Priority Area. She has considerable experience as party and amicus counsel in U.S. Supreme Court LGBT civil rights cases, including Lawrence v. Texas, 539 U.S. 558 (2003) (striking down state laws criminalizing sexual intimacy between consenting adults); United States v. Windsor, 133 S. Ct. 2675 (2013) (striking down Section 3 of the federal Defense of Marriage Act), and Christian Legal Soc’y v. Martinez, 561 U.S. 661 (2010) (upholding public university non-discrimination policy).
Ms. Sommer also has extensive experience litigating and briefing state and federal cases seeking marriage rights, recognition of marital and other same-sex relationships, and recognition of the parental rights of LGBT parents. Ms. Sommer‘s experience and knowledge in marital and parenting cases was invaluable to the Henry litigation team. And she had extensive responsibility for drafting briefs in the case at the District Court, Circuit Court, and Supreme Court phases. She worked closely with the Kentucky, Tennessee and Michigan litigation teams, leading coordination of amicus briefing on behalf of the Henry Plaintiffs in the Supreme Court and assisting with preparation of the attorneys who argued in the Sixth Circuit and Supreme Court.
Once the Sixth Circuit ruled on November 6, 2015, Plaintiffs had a very short time to file
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a cert petition if there was any hope the Supreme Court would decide the case in the 2014 term. The petition for writ of certiorari was filed eight days later on November 14, 2014. A flurry of litigation ensued. Multiple lawyers with varying areas of expertise were needed to draft the certiorari petition and reply, research the ever changing law on marriage equality, draft the merits brief, create the appendix, read analyze and respond to over 130 amicus briefs, file the reply brief and prepare for oral argument in the course of five short months. During the litigation of these cases, from the filing of Obergefell on July 19, 2013 immediately after United States v. Windsor, 133 S. Ct. 2675 (2013) was decided, to April 28, 2015 when the case was argued, the state of the law dramatically changed. Plaintiffs‘ counsel needed to keep up to date on the law, analyze each court decision, and adjust arguments and legal theories throughout the litigation.
Once the cases were consolidated on appeal the legal research, legal theories, briefing, and arguments overlapped. The work all the attorneys did on both cases was necessary. Legal work was divided among team members so that the person best suited for the assignment was responsible for the work. For example, Ms. Sommer of Lambda took the lead on drafting the Henry briefs in the Sixth Circuit given her writing skills and experience. The ACLU took the lead on drafting the Obergefell briefs in the Sixth Circuit. The petition for certiorari, and the merits briefing in the Supreme Court also reflects very heavy input from the excellent attorneys at LAMBDA and the ACLU. Law clerks were given tasks best suited for their skill level. Each of the attorneys was incredibly efficient in their billing practices, minimizing duplication when all attorneys need to communicate together or participate in drafting, editing, and strategizing on the case.
At the Supreme Court level there was a significant amount of work to do in a very short period of time given that our petition for certiorari needed to be filed within eight days of the
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Sixth Circuit issuing its decision if we were going to obtain Supreme Court review during the 2014 term. At times multiple attorneys were in communication with each other via phone calls and emails. Much of the time for these communications was not even billed, but all of it was necessary. Multiple attorneys participated in drafting and editing critical documents and in preparing for oral argument. All of this time was necessary as well given the wide range of expertise among the ACLU and Lambda attorneys and the rapidly evolving state of the law. During the pendency of the appeals state court judges, district court judges and circuit court judges were issuing decisions all over the country. As these cases were analyzed by our team, our strategy and theories were amended to incorporate or respond to the evolving law. Given the amount of work that needed to be done in such a short amount of time the hours put in by the attorneys and staff in Obergefell and Henry were all very reasonable. For all these reasons, the hours requested by counsel are reasonable. III. Calculation of Fees Under 42 U.S.C. § 1988
The first step in determining a reasonable fee is to determine the hourly rate to be used. The Supreme Court held that attorney‘s fees are to be ―calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.‖ Blum v. Stevenson, 465 U.S. 886, 895, 104 S.Ct. 1541 (1984).
To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.‖ Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir.2004). In determining the reasonable rate, the Court has the discretionary authority to consider a party's submissions, awards in analogous cases, and its own knowledge and experience from handling similar requests for fees. Project Vote, 2009 U.S. Dist. LEXIS 34571, at *5 (citing Johnson v. Connecticut Gen. Life Ins. Co. 2008 LEXIS 24026, at * 14 (N.D.Ohio Mar. 13, 2008)). Ne. Coal. for Homeless v. Brunner, 2:06-CV-896, 2010 WL 4939946 at *7 (S.D. Ohio Nov. 30, 2010). The hourly rates requested by Plaintiffs meet this standard.
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Plaintiff seeks fees based on an hourly rate of $475 for Alphonse A. Gerhardstein (Admitted 1978), $700 for James Esseks (Admitted 1992), $450 for Susan Sommer (Admitted 1988), $425 for Jennifer Branch (Admitted 1987), $350 for Lisa Meeks (Admitted 1993) and Ellen Essig (Admitted 1986), and $250 for associate Jacklyn Gonzales Martin (Admitted 2010) and $215 for associate Adam Gerhardstein (admitted 2013). These rates are consistent with rates recently found by federal courts to be reasonable for attorneys in the Southern District of Ohio. For example, in Williamson v. Recovery Ltd. Partnership, No. 2:06–cv–292, 2013 WL 3222428 (S.D. Ohio June 25, 2013), the court awarded a Columbus attorney with experience comparable to Mr. Gerhardstein‘s $520 per hour. Mr. Gerhardstein was awarded fees at $400 per hour in the Hunter case, but subsequent to the filing of the fee motion in Hunter in April 2012, Mr. Gerhardstein increased his rate to $450 per hour and has settled cases at that rate since April 2012. He increased his rate to $475 on May 1, 2015. Gerhardstein Declaration.
Ms. Gonzales Martin has over 5 years of experience. In Williamson, an attorney with less experience was awarded $220 per hour. See also Rist v. Hartford Life & Acc. Ins. Co., No. 1:05– cv–492, 2011 WL 6101633 (S.D. Ohio Nov. 14, 2011) (approving fees of $200 per hour and $225 per hour for Cincinnati attorneys with less experience than Ms. Gonzales Martin).
In 2013 Ms. Branch‘s rate was sua sponte increased from $300 to $385 by the District Court for work done in 2010 through 2012. See Hunter v. Hamilton Cnty. Bd. of Elections, 1:10CV820, 2013 WL 5467751 at *17 (S.D. Ohio Sept. 30, 2013) (Dlott, C.J.). Having been awarded a rate by another court is one indicia that a rate is reasonable. Ne. Coal. for the Homeless v. Brunner, No. 2:06cv896, 2010 WL 4939946, at *7 (S.D. Ohio Nov. 30, 2010) (―In determining the reasonable rate, the Court has the discretionary authority to consider a party‘s submissions, awards in analogous cases, and its own knowledge and experience from handling
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similar requests for fees.‖). Ms. Branch increased her rate to $425 in May 2015. Branch

Declaration.

Ms. Branch‘s rate of $425 and Ms. Meek‘s and Ms. Essig‘s rates of $350 are comparable

to other attorneys in the Cincinnati market with their experience of 29 years to 22 years,

respectively. See, U.S. ex rel. Ellison, 2010 WL 2854137, at *2 (awarding fees from $425 to

$500 per hour for attorneys with between eighteen and twenty-seven years of experience in

2010).

Additional support for plaintiffs‘ attorney‘s rates can be found in Judge Rubin‘s 1983

committee‘s determination of reasonable attorney fee rates for the Southern District. Courts in

the Southern District still use Judge Rubin‘s rates, adjusting the rates for cost of living at 4% per

year. See, Hunter at *17; Georgia-Pacific LLC v. Am. Intern. Specialty Lines Ins. Co., 278

F.R.D. 187, 192 (S.D. Ohio 2010); West v. AK Steel Corp. Ret. Acc. Pension Plan, 657 F. Supp.

2d 914, 932 (S.D. Ohio 2009). Fredericks v. Potter, Case No. 1:06-CV-113, Doc. 123 (S.D. OH

2009), Lee v. Javitch, Block & Rathbone LLP, 568 F. Supp. 2d. 870 (S.D. Ohio 2008) (C. J.

Beckwith) (merits decision later reversed); Kindel v. Continental Casualty Co., 2005 WL

1241975 (S.D. Ohio 2005) (C. J. Beckwith).

Under Judge Rubin‘s rubric, the rates requested are comparable. The chart below

summarizes the current rates compared to Judge Rubin‘s rubric using 1983 rates calculated for

2015 rates, after applying a 4% annual cost-of-living allowance to measure the reasonableness of

the fees requested. (Branch Declaration). Applying the Rubin Rate as of 2015, the rates for all

the attorneys except the associates would be $450 per hour.

Name
Al Gerhardstein James Esseks

Hourly Rate
$475 $700

Year Admitted
1976 1992

Years in Practice
39 23

Rubin Rate as of 2015
$450 $450

12

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 13 of 20 PAGEID #: 1733

Susan Sommer Jennifer Branch Lisa Meeks Ellen Essig Chase Strangio Associate Attorney Associate Attorney 2 Paralegals Law Clerk

$450 $425 $350 $350 $325 $250 $215 $100 $85

1988

27

1987

28

1993

22

1986

29

2010

5

2010

5

2013

2

$450 $450 $450 $450 $289 $289 $216 $132 $84

In addition, the market rates in the Cincinnati market are comparable to the rates being charged by Plaintiffs‘ attorneys. Other Cincinnati litigators with similar years of experience as

the lead attorneys in this case bill at higher rates:

Attorney Name (date of admission) David Altman (1974) David M. Cook ( 1978) Jim Helmer (1975)
Paul Martin (1979) Frederick Morgan, Jr. (1983) Julie Popham (1992) Jennifer Verkamp (1996)

Awarded rate (year of award) $390 (2004)2 $450 (2008)3 $420 (2004)4 $498 (2010)5
$375 (2004) 6 $500 (2010) 7 $425 (2010) 8 $450 (2010) 9

These Cincinnati market rates are equal to or higher than the rates Plaintiffs request in this case, except Mr. Essek‘s rate. For additional comparison of court awarded Cincinnati market rates, see West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F. Supp. 2d 914, 934 (S.D.

Ohio 2009) (approving experienced counsel rates for $351 to $497 in an ERISA case). A

2

Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club,

Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004).

3

Bailey v. AK Steel Corp., 2008 WL 553764 (S.D. OH 2008).

4

Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club,

Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004).

5

U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137 (S.D. OH 2010).

6

Doc. 177, Order granting fees (Judge Black June 1, 2004) in Estate of Roger Owensby, Jr. v. City of

Cincinnati (and Doc. 133, Declaration of Paul Martins in support thereof).

7

U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137 (S.D. OH 2010).

8

U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137 (S.D. OH 2010).

9

U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137 (S.D. OH 2010).

13

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 14 of 20 PAGEID #: 1734
decision from the Northern District of Ohio in which the court approved rates ranging from $250 to $450 per hour, depending on each attorney's experience, was affirmed on appeal. Van Horn v. Nationwide Prop. and Cas. Ins. Co., 436 F. App'x 496, 499 (6th Cir.2011).
Mr. Esseks‘ rate is much higher than the Cincinnati market for a litigator with 23 years of experience. However, Mr. Esseks and Mr. Strangio work for the national ACLU in New York, New York and have developed an expertise in federal constitutional law and LGBT rights. Mr. Esseks litigates cases all over the country. It is appropriate to use the market rate in New York to determine the reasonableness of his hours. New York Attorney Ann L. Clark, a partner with the firm Vladeck, Raskin & Clark, P.C, submitted an affidavit in the Kentucky case in support of Mr. Esseks‘ work. (Esseks Declaration Ex. D). Ms. Clark has worked directly with Mr. Esseks and is familiar with his work, which is outstanding. His billing rate of $700 per hour is reasonable for an attorney with his level of skill and expertise in the New York, New York market. Id. Cincinnati market rates should not apply to the ACLU or Lambda attorneys. The Sixth Circuit has observed that ―[w]hen fees are sought for an out-of-town specialist, courts must determine (1) whether hiring the out-of-town specialist was reasonable in the first instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation.‖ Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995) (citing Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 1982)). Other circuits have used a similar approach. See Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 50 F.3d 253, 259-60 (3d Cir. 1995); Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993); Nat'l Wildlife Fed'n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988); Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983); Donnell v. United States, 682 F.2d 240, 252, 220 U.S. App. D.C. 405 (D.C. Cir. 1982).
14

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 15 of 20 PAGEID #: 1735

Plaintiff‘s requested rates are consistent with the rates in the above cases. This court

should therefore award Plaintiff attorneys‘ fees as set forth below.

FEES

Name or Position
Alphonse A. Gerhardstein11 Jennifer L. Branch Associate Attorney Associate Attorney 2 G&B Law Graduate G&B Paralegal I G&B Paralegal II G&B Law Clerks Lisa Meeks Ellen Essig Susan L. Sommer James Esseks Chase Strangio Joshua Block Total

Total Obergefell Hours10
410.60 58.05 335.80 12.20 272.50
.90 1.40 172.85 10.90
0 0 159.10 257.40 8.41

Henry Hours
442.00 4.50
118.58 2.20 93.50 4.40 0 10.40 19.50 67.75
550.95 0 0 0

Total Hours
852.60 62.55 454.38 14.40
399 5.3 1.40 183.25 30.4 67.75 550.95 159.10 257.40 8.41

Hourly Rate
$475 $425 $250 $215 $130 $100 $100 $85 $350 $400 $450 $700 $325 $400

Lodestar
404,985.00 26,583.75 113,595.00 3,096.00 47,580.00
530.00 140.00 15,576.25 10,640.00 27,100.00 247,927.50 111,370.00 83,655.00 3,364.00 1,096,142.50

IV. A Fee Enhancement is Appropriate in These Cases

Obergefell and Henry are the rare cases that require Plaintiffs‘ counsel‘s loadstar fee be

enhanced because of the results, the unpopularity of the case, and fee awards in other cases.

In Perdue v. Kenny, the Supreme Court reaffirmed that a court may grant a fee

enhancement for superior attorney performance in rare and exceptional cases only in which the

fee applicant has produced specific evidence supporting the enhancement. Perdue v. Kenny, 130

S.Ct. 1662, 1672-1674 (2010). In reversing the lower court‘s fee enhancement for failure to

provide adequate justification for the enhancement, the Court reaffirmed a prior holding that the

―novelty and complexity of a case generally may not be used as a ground for an enhancement

10 These hours include the hours requested in the first fee motion, Doc. 70. 11 G&B attorney and paralegal rates increased on May 1, 2015. The rates shown here are current hour rates.
15

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because these factors presumably are fully reflected in the number of billable hours recorded by counsel and normally are reflected in the reasonable hourly rate.‖ Id. (citing Burlington v. Dague, 505 U.S. 557, 562-63 (1992)).
However, Perdue recognized that in rare and exceptional circumstances enhancements may be appropriate. In holding that enhancements may be appropriate in certain circumstances, the Court emphasized that enhancements must be calculated using a method that is ―reasonable, objective, and capable of meaningful appellate review.‖ Id. at 1674.
Prior to Perdue, this Circuit had recognized and applied 12 Johnson factors.12 See, Barnes v. City of Cincinnati , 401 F.3d 729 (6th Cir. 2005) (affirming award of 75% multiplier to attorneys Gerhardstein and Branch in a transgender discrimination case few lawyers would have taken and the immense skill requisite to conducting the case properly); Geier v. Sundquist, 372 F.3d 784, 792-796 (6th Cir. 2004) (permitting upward adjustment because desegregation case was ―pathbreaking and of great social import,‖); Brotherton v. Cleveland, 141 F.Supp.2d 907, 913 (S.D. Ohio 2001) (awarding 50% adjustment for solo practitioner who took an unpopular case others turned down, achieved exceptional results, and brought to light a novel cause of action); Meredith v. Jefferson County Bd. of Educ., No. 3:02-cv-620-H, 2007 WL 3342282, *1213 (W.D.Ky. 2007) (awarding 75% multiplier in undesirable and difficult discrimination case where counsel was ―vilified‖ and suffered ―adverse public and personal criticism‖ and succeeded ―more upon a conviction than skill‖).
Perdue reserved four Johnson13 factors for use to justify the upward departure from the lodestar: 1) amount in controversy and results obtained; 2) undesirability of case within legal community; 3) nature and length of professional relationship between attorney and client; and 4)
12 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717019 (5th Cir. 1974). 13 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717019 (5th Cir. 1974).
16

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 17 of 20 PAGEID #: 1737
attorney‘s fee awards in similar cases.‖ McAfee v. Boczar, 738 F.3d 81, 89 (4th Cir. 2013), as amended (Jan. 23, 2014) (citing Perdue, 130 S. Ct. at 1673). Perdue reasoned that the remaining Johnson factors should have already been analyzed in the lodestar calculation.
Three of these factors support an enhancement of 50% in these cases: 1) results obtained; 2) undesirability of case within the legal community; and 3) fees in similar cases. First, ―superior results‖ in the lawsuit may support an enhancement insofar as ―it can be shown that they are the result of superior attorney performance.‖ Perdue, 559 U.S. at 565-567. There is no question that Mr. Gerhardstein, Ms. Sommer, and Mr. Esseks, are superior LGBT civil rights litigators who, when working together, were able to achieve superior results. These attorneys, working with the entire Obergefell and Henry legal teams, have advanced the marriage equality law in this country for all married same sex couples and their children. A fee enhancement is appropriate in this case because of the results achieved in Obergefell and Henry, which resulted in a landmark Supreme Court decision holding that the Fourteenth Amendment to the U.S. Constitution prohibited states, including Ohio, from recognizing same sex marriages. The same arguments that supported reversal in Obergefell and Henry supported the second holding that the Fourteenth Amendment requires states, including Ohio, to license same sex marriages. These results were life changing for Jim Obergefell and David Michener who wanted their marriages to be valued after their husband‘s death. The results were life changing for the parents and children in the Henry case. More importantly, Obergefell changed the lives of thousands of parents and their children throughout Ohio and the entire country. These extraordinary results were achieved through the superior work the lead attorneys on the cases.
A second relevant factor is the undesirability of the case within the legal community. Marriage equality has had a long and tortious path in this country until Windsor. The first
17

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 18 of 20 PAGEID #: 1738

successful marriage equality case, which Lambda Legal worked on, was when the Hawaii

Supreme Court in 1993 held that excluding same-sex couples from marriage was discrimination.

This case ―unleashed one of the most profound examples of backlash in our movement‘s

history.‖ (Lambda Legal website: http://www.lambdalegal.org/in-court/cases/baehr-v-miike).

The federal defense of marriage act followed in 1996, as did Ohio‘s marriage bans. It was not

until Windsor that the legal tide turned. When Windsor was decided on June 26, 2013, same sex marriage was legal in 10 states. 14 Ohio was not one of those states; nor was it a state that could

pass a voter referendum to overturn the marriage bans in the Ohio Constitution. Mr. Gerhardstein

has represented LGBT people for over 30 years. This is not easy work. While he may be used to

representing unpopular people, these cases attract negative attention and are undesirable to many

litigators. His office received negative hate mail during the litigation, including from supporters

of LGBT rights who were angry the Plaintiffs had appealed. There was a concern the Supreme

Court would rule against the Plaintiffs and thus un-do all the positive results across the circuits.

Thus, the undesirability of these cases also supports a 50% fee enhancement.

Finally, fees awarded in similar cases supports the enhancement. In Love v. Beshear, the

district court awarded Plaintiffs‘ fees and a ―bonus‖ of 17 % because they undertook a ―difficult,

unpopular case and achieved remarkable success.‖ Love v. Beshear, WDKY Case No. 3:13-cv-

750. In Barnes v. City of Cincinnati, the court awarded a 75% enhancement, which the Sixth

Circuit upheld the enhancement because the jury returned a verdict for Officer Barnes in her

transgender sex discrimination case. The court found the attorneys showed that this was a highly

controversial case and an extraordinary result was achieved. The attorneys also stated that few

lawyers locally or nationally would take such a case. Therefore, the enhancement was held to be

proper. Plaintiffs anticipate that while this motion is pending, other enhancements may be

14

http://www.hrc.org/state_maps

18

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 19 of 20 PAGEID #: 1739

awarded since the Plaintiffs in Bourke and DeBoer have filed motions seeking an enhancement.

In addition, attorney fee litigation is pending in other circuits. For all these reasons, Plaintiffs

request an enhancement of 50% of the fees awarded.

V. Litigation Costs

Plaintiffs are entitled to an award of costs for expenses that would normally be billed to

fee-paying clients. This includes filing fees, long distance phone charges, copy costs, and travel

expenses, expert fees and transcript costs. 42 U.S.C. § 1988 (b); Northcross, 611 F.2d at 639;

See also Fed. R. Civ. P. 54(d)(1) (―Unless a federal statute, these rules, or a court order provides

otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.‖).

Plaintiff has incurred a total of $51,360.12 in expenses related to the case. (See Gerhardstein

Declaration, Ellen Essig Declaration, and Exhibit E to James Essex Declaration).

CONCLUSION

Plaintiffs respectfully request they be awarded attorney fees in the amount of

$1,096,142.50, plus a 50% enhancement, pursuant to 42 U.S.C. §1988. In addition, Plaintiffs

request an enhancement of 50% of the fees awarded. Finally, Plaintiffs should be awarded their

expenses in the amount of $51,360.12.

Respectfully submitted,

Susan L. Sommer Lambda Legal Defense & Education Fund, Inc. 120 Wall Street, 19th Floor New York, New York 10005 212-809-8585; 212-809-0055 fax ssommer@lambdalegal.org
Attorney for Henry Plaintiffs

/s/ Jennifer L. Branch Alphonse A. Gerhardstein # 0032053 Trial Attorney for Plaintiffs Jennifer L. Branch #0038893 GERHARDSTEIN & BRANCH CO. LPA Attorneys for Plaintiffs 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 (513) 621-9100 (513) 345-5543 fax agerhardstein@gbfirm.com jbranch@gbfirm.com

19

Case: 1:13-cv-00501-TSB Doc #: 87 Filed: 09/11/15 Page: 20 of 20 PAGEID #: 1740

Attorneys for Obergefell and Henry Plaintiffs

Ellen Essig 105 East 4th Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com
Attorney for Henry Plaintiffs

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

James Essex Chase Strangio American Civil Liberties Union Foundation 125 Broad St. New York, NY 10004 Phone (212) 549-2650 Fax (212) 549-2650 Jesseks@aclu.org cstrangio@aclu.org Attorneys for Obergefell Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2015, 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/ Jennifer L. Branch Jennifer L. Branch

20

 
 Case: 1:13-cv-00501-TSB Doc #: 88 Filed: 11/02/15 Page: 1 of 3 PAGEID #: 1863

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL, et aL,

Case No. 1:13-cv-501

Plaintiffs, vs.

Judge Timothy S. Black

RICHARD HODGES, et al.,

Defendants.

FINAL JUDGMENT AND DECLARATORY JUDGMENT AND PERMANENT INJUNCTION
On July 19, 2013, Plaintiffs filed a Complaint for Declaratory and Injunctive relief challenging the constitutionality of the Ohio statute and constitutional provision that denied legal recognition in Ohio to same-sex couples married outside Ohio. On December 23, 2013, this Court entered a declaratory judgment and permanent injunction. (Doc. 66). In a consolidated appeal, that decision was reversed by the United States Court of Appeals for the Sixth Circuit. DeBoer v. Synder, 772 F.3d 388 (6th Cir. 2014). On Writs of Certiorari, however, the United States Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit. Obergefell v. Hodges, 135 S.Ct. 2584 (2015) (Doc. 82). Accordingly, consistent with the Supreme Court's judgment and mandate in Obergef ell v. Hodges, 135 S.Ct. 2584 (2015), this Court now enters a final judgment and declaratory judgment and permanent injunction in this case.
In accordance with the Supreme Court' s decision in Obergefell, this Court finds that Plaintiffs have established that Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101.01(C) violate rights secured by the Fourteenth Amendment to the United States Constitution in that

Case: 1:13-cv-00501-TSB Doc #: 88 Filed: 11/02/15 Page: 2 of 3 PAGEID #: 1864
same-sex couples legally married in other jurisdictions who seek to have their out-of-state marriages recognized and accepted as legal in and by Ohio are denied due process and equal protection of law when the State denies recognition to, and the attendant protections and benefits for, their existing marriages entered in other jurisdictions. The evidence demonstrates that there is no state interest sufficient to justify denying same-sex married couples the same recognition of their existing marriages.
The Court DECLARES that Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101 .01 (C) are unconstitutional, and that the filing of Ohio death certificates on behalf of Plaintiffs, and other similarly situated couples in valid same-sex marriages from other jurisdictions, shall recognize decedents as "married" or "widowed" and shall acknowledge decedents' "surviving spouses."
The Court further DECLARES that Ohio Const. Art. XV, §11 and Ohio Rev. Code. § 3101.0l(C) violate the constitutional rights ofthose same-sex couples married in jurisdictions that authorize same-sex marriage who become clients of Plaintiff Robert Grunn and about whom he reports information regarding their marital status and status as surviving spouses in support of their requests for death certificates. The Court specifically DECLARES that Plaintiff Robert Grunn, and others who have the duty to report information for death certificates in Ohio, may, consistent with the Constitution of the United States and this Court' s Final Order, report that a decedent married in a state authorizing same-sex marriage is "married" or "widowed" and report the name of the decedent' s surviving same-sex spouse on an Ohio death certificate they complete in the course of their work.
2

Case: 1:13-cv-00501-TSB Doc #: 88 Filed: 11/02/15 Page: 3 of 3 PAGEID #: 1865

Defendant Richard Hodges, who is sued in his official capacity as the Director of the Ohio Department of Health, and Defendant Camille Jones, who is sued in her official capacity as the Registrar for the City of Cincinnati Health Department, and their officers, agents, and employees, and those persons in active concert or participation with Defendants who receive actual notice ofthis Order, are also PERMANENTLY ENJOINED from enforcing Ohio Const. Art. XV, §II and Ohio Rev. Code§ 310l.Ol(C), such that Defendants, and all those acting in concert, are required to issue to each person who dies married to a person of the same sex a death certificate that records his or her marital status as "married" or "widowed" and lists the same-sex "surviving spouse" by name, and Defendants, and those persons in active concert or participation with Defendants who receive actual notice ofthis Order, are prohibited from initiating any criminal prosecution or administrative discipline against Plaintiff Grunn, or others who have the duty to report information for death certificates in Ohio, for accurately recording same-sex marriages and same-sex surviving spouses on the death certificates they complete.
Defendant Richard Hodges is further ORDERED in his official capacity to make a good faith effort to communicate Notice of this Final Order (Doc. 88) to all persons within Ohio who assist with completing Ohio death certificates, and he shall evidence such compliance by filing with this Court a Notice of Compliance by December I, 20I5. The posting of this Final Order on the Ohio Department ofHealth's official website shall satisfy this Notice requirement.
IT IS SO ORDERED.

Date: I J ~~ J16:'

Timothy S. Black United States Distric udge

3

 
 Case: 1:13-cv-00501-TSB Doc #: 89 Filed: 11/02/15 Page: 1 of 1 PAGEID #: 1866

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

JAMES OBERGEFELL, et al.,

Case No. 1:13-cv-501

Plaintiffs, vs.
RICHARD HODGES, et al.,
Defendants.

Judge Timothy S. Black
STIPULATED JUDGMENT ENTRY FOR ATTORNEY FEES

STIPULATED JUDGMENT ENTRY

Plaintiffs filed a motion for attorney fees. (Doc. 87). The parties have reached an

agreement regarding the amount to be awarded in attorney fees in the amount of

$1 ,300,000.00 in fees and expenses. Pursuant to the terms of the agreement, the Court

orders that Defendant Hodges shall pay to Gerhardstein & Branch Co. LPA, for the

benefit of all attorneys identified in the fee motion, the sum of $1 ,300,000.00 --in full

satisfaction of all Plaintiffs' attorney fees and expenses incurred in this case, in full

satisfaction of all Plaintiffs' attorney fees and expenses incurred in Henry v. Hodges,

SDOH Case No. 1:14-cv-129, and in full satisfaction of all Plaintiffs' attorney fees and

expenses incurred in Gibson v. Himes, SDOH Case No. 1:14-cv-347 through October 30,

2015 .

The Clerk shall enter a judgment in accordance with this Entry.

SO ORDERED, this 2nd day ofNovember, 2015.

<'~~lA ?:;;_ ~/\it

Timothy S. Black~

v~· "

United States District Judge

 
 Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 1 of 13
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:13−cv−00501−TSB

CLOSED,LC3

Obergefell et al v. Kasich et al Assigned to: Judge Timothy S. Black related Case: 1:14−cv−00129−TSB
Case in other court: Sixth Circuit Court of Appeals, 14−03057 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/19/2013 Date Terminated: 12/23/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

James Obergefell

represented by Alphonse Adam Gerhardstein Gerhardstein & Branch Co. LPA 441 Vine Street Suite 3400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: agerhardstein@gbfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacklyn Gonzales Martin Gerhardstein & Branch Co. LPA 432 Walnut St., Ste. 400 Cincinnati, OH 45202 513−621−9100 Fax: 513−345−5543 Email: jgmartin@gbfirm.com TERMINATED: 07/30/2015

Lisa Talmadge Meeks Newman & Meeks Co LPA 215 E. Ninth Street Suite 650 Cincinnati, OH 45202 513/639−7000 X12 Fax: 513/639−7011 Email: lisameeks@newman−meeks.com ATTORNEY TO BE NOTICED

Jennifer Lynn Branch Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 513−621−9100 x13 Fax: 513−345−5543 Email: jbranch@gbfirm.com ATTORNEY TO BE NOTICED

Plaintiff John Arthur

represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacklyn Gonzales Martin (See above for address) TERMINATED: 07/30/2015

Lisa Talmadge Meeks

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 2 of 13

(See above for address) ATTORNEY TO BE NOTICED

Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Brian Michener

represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacklyn Gonzales Martin (See above for address) TERMINATED: 07/30/2015

Lisa Talmadge Meeks (See above for address) ATTORNEY TO BE NOTICED

Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Grunn

represented by Jennifer Lynn Branch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alphonse Adam Gerhardstein (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
John Kasich TERMINATED: 09/27/2013

represented by Bridget C Coontz Ohio Attorney General's Office Constitutional Offices 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: bridget.coontz@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristopher J Armstrong Ohio Attorney General's Office Constitutional Offices 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: kristopher.armstrong@ohioattorneygeneral.gov TERMINATED: 09/17/2013
Zachery Paul Keller Ohio Attorney General Constitutional Offices

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 3 of 13

30 East Broad St., 16th Floor Columbus, OH 43215 614−466−1853 Fax: 614−728−7592 Email: zachery.keller@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Defendant
Attorney General Mike DeWine TERMINATED: 09/27/2013

represented by Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristopher J Armstrong (See above for address) TERMINATED: 09/17/2013

Zachery Paul Keller (See above for address) ATTORNEY TO BE NOTICED

Defendant
Camille Jones In her official capacity as Registrar, City of Cincinnati Health, Dept. Office of Vital Records

represented by Peter J Stackpole City of Cincinnati Office of City Solicitor Room 214 City Hall 801 Plum Street Cincinnati, OH 45202 513−352−3350 Fax: 513−352−1515 Email: peter.stackpole@cincinnati−oh.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terrance A Nestor City of Cincinnati Solicitors Office 801 Plum Street Room 214 City Hall Cincinnati, OH 45202 513−352−2495 Email: terry.nestor@cincinnati−oh.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Mark Herzig Taft Stettinius & Hollister LLP 425 Walnut Street Suite 1800 Cincinnati, OH 45202 513−357−8768 Fax: 513−381−0205 Email: aherzig@taftlaw.com TERMINATED: 03/21/2014

Defendant
Theodore Wymyslo, M.D. In his official capacity as the Director of the Ohio Department of Health

represented by Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan L. Richardson 2480 Fair Avenue

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 4 of 13

Bexley, OH 43209 513−571−7116 Email: ryan.richardson@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Zachery Paul Keller (See above for address) ATTORNEY TO BE NOTICED

Amicus Citizens for Community Values

represented by Joseph E. La Rue Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: jlarue@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/19/2013 07/19/2013 07/19/2013
07/19/2013 07/19/2013 07/19/2013 07/19/2013
07/19/2013
07/19/2013 07/19/2013 07/22/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 paid − receipt number: 0648−4186919), filed by James Obergefell, John Arthur. (Attachments: # 1 Civil Cover Sheet) (Branch, Jennifer) (Entered: 07/19/2013)
2 NOTICE of Appearance by Alphonse Adam Gerhardstein for Plaintiffs John Arthur, James Obergefell (Gerhardstein, Alphonse) (Entered: 07/19/2013)
3 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiffs John Arthur, James Obergefell. (Attachments: # 1 Affidavit Declaration of James Obergefell, # 2 Affidavit Declaration of John Arthur, # 3 Text of Proposed Order) (Gerhardstein, Alphonse) (Entered: 07/19/2013)
4 NOTICE of Appearance by Jacklyn Gonzales Martin for Plaintiffs John Arthur, James Obergefell (Martin, Jacklyn) (Entered: 07/19/2013)
5 NOTICE of Appearance by Bridget C Coontz for Defendants Mike DeWine, John Kasich (Coontz, Bridget) (Entered: 07/19/2013)
6 NOTICE of Appearance by Kristopher J Armstrong for Defendants Mike DeWine, John Kasich (Armstrong, Kristopher) (Entered: 07/19/2013)
Notice of Hearing: Pursuant to S.D. Ohio Civ. R. 65.1, this civil action is set for an informal conference by telephone on 7/19/13 at 2:30 p.m. Counsel shall call: 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mtw) (Entered: 07/19/2013)
Minute Entry and Notice of Hearing: This civil action came on before the Court on 7/19/13 at 2:30 p.m. for an informal status conference by telephone pursuant to S.D. Ohio Civ. R. 65.1. Attorneys Alphonse Gerhardstein, Jacklyn Martin, Jennifer Branch, Bridget Coontz, Kristopher Armstrong, Damian Sikora, Terry Nestor, and Aaron Herzig participated. All parties shall submit briefing on the pending TRO. (Doc. 3). Plaintiffs' counsel shall file a supplemental memorandum and Defense counsel shall file memoranda contra on or before 7/22/13 at 11:00 a.m. This civil action is set for oral argument on the TRO on 7/22/13 at 1:30 p.m. in Cincinnati Courtroom 805. (Court Reporter Mary Ann Ranz, Official.) (jlw) (Entered: 07/19/2013)
7 NOTICE of Appearance by Aaron Mark Herzig for Defendant Camille Jones (Herzig, Aaron) (Entered: 07/19/2013)
8 NOTICE of Appearance by Terrance A Nestor for Defendant Camille Jones (Nestor, Terrance) (Entered: 07/19/2013)
9 HEARING MEMORANDUM re MOTION for Temporary Restraining Order (doc. 3 ) by Plaintiffs John Arthur, James Obergefell. (Gerhardstein, Alphonse) Modified to edit text on 7/22/2013 (mr1). (Entered: 07/22/2013)

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 5 of 13

07/22/2013 07/22/2013 07/22/2013 07/22/2013 07/22/2013 07/22/2013
07/24/2013 07/25/2013
07/30/2013 07/30/2013
07/30/2013 08/09/2013 08/13/2013 08/13/2013

10 RESPONSE to Motion re 3 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendant Camille Jones. (Attachments: # 1 Exhibit A) (Herzig, Aaron) (Entered: 07/22/2013)
11 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants Mike DeWine, John Kasich. (Attachments: # 1 Exhibit A Blank Certificate of Death) (Coontz, Bridget) (Entered: 07/22/2013)
12 NOTICE by Plaintiffs John Arthur, James Obergefell re 3 MOTION for Temporary Restraining Order and Preliminary Injunction of Filing Revised Proposed TRO (Branch, Jennifer) (Entered: 07/22/2013)
13 ORDER GRANTING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER (Doc. 3 ). Signed by Judge Timothy S. Black on 7/22/2013. (mr1) (Entered: 07/22/2013)
14 TEMPORARY RESTRAINING ORDER. Signed by Judge Timothy S. Black on 7/22/2013. (mr1) (Entered: 07/22/2013)
Minute Entry: This civil action came before the Court for a hearing on Plaintiffs' Motion for Temporary Restraining Order (Doc. 3) on 7/22/13 at 1:30 p.m. Attorneys Alphonse Gerhardstein, Jennifer Branch, and Jacklyn Martin appeared for Plaintiffs, along with Plaintiff James Obergefell. Attorneys Bridget Coontz and Kristopher Armstrong appeared for Defendants Kasich and DeWine. Attorney Aaron Herzig appeared for Defendant Jones. Mr. Obergefell provided sworn testimony. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 07/22/2013)
NOTICE of Hearing: A Status Conference by telephone set for 7/31/2013 at 11:00 a.m. before Judge Timothy S. Black. COUNSEL SHALL CALL: 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mr1) (Entered: 07/24/2013)
NOTICE of Hearing: The Status Conference by telephone set for 7/31/2013 is VACATED and RESCHEDULED for 7/30/2013 at 8:30 a.m. before Judge Timothy S. Black. COUNSEL SHALL CALL: 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mr1) (Entered: 07/25/2013)
15 WAIVER OF SERVICE Returned Executed. Waiver sent to Camille Jones on 7/24/2013, answer due 9/23/2013. (Martin, Jacklyn) (Entered: 07/30/2013)
Minute Entry, NOTATION ORDER, and NOTICE of Telephone Conference: This civil action came on before the Court for a status conference by telephone on 7/30/13 at 8:30 a.m. Attorneys Alphonse Gerhardstein, Jennifer Branch, Jacklyn Martin, Bridget Coontz, and Aaron Herzig participated. Pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure, and by agreement of the parties, the expiration of the temporary restraining order (Doc. 14 ) is hereby extended to 8/19/13 at 5:00 p.m., in order to facilitate the parties' further negotiations of a proposed litigation calendar for resolution. A separate Order of extension shall issue. A status conference by telephone is set for 8/13/13 at 11:00 a.m. before Judge Timothy S. Black. COUNSEL SHALL CALL 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. IT IS SO ORDERED. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 07/30/2013)
16 EXTENSION OF TEMPORARY RESTRAINING ORDER. Signed by Judge Timothy S. Black on 7/30/2013. (mr1) (Entered: 07/30/2013)
17 NOTICE of Appearance by Lisa Talmadge Meeks for Plaintiffs John Arthur, James Obergefell (Meeks, Lisa) (Entered: 08/09/2013)
18 Joint Case Management Plan by Defendants Mike DeWine, John Kasich, Plaintiffs James Obergefell, Camille Jones, John Arthur. (Coontz, Bridget) Modified to include all filers on 8/14/2013 (eh1). (Entered: 08/13/2013)
Minute Entry and NOTATION ORDER: This civil action came on before the Court for a status conference by telephone on 8/13/13 at 11:00 a.m. Attorneys Alphonse Gerhardstein, Jennifer Branch, Jacklyn Martin, Lisa Meeks, Bridget Coontz, Ryan Richardson, and Terrance Nestor participated. The parties will confer and email a joint

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08/13/2013
08/13/2013 08/30/2013 08/30/2013 09/03/2013 09/03/2013 09/03/2013
09/03/2013 09/03/2013
09/03/2013
09/03/2013 09/03/2013 09/04/2013 09/13/2013

proposed order extending the temporary restraining order to chambers at Black_Chambers@ohsd.uscourts.gov by 5:00 p.m. today, 8/13/13. The parties' joint case management plan, as adopted by the Court, will issue by separate entry. IT IS SO ORDERED. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 08/13/2013)
ORDER ESTABLISHING CASE MANAGEMENT PLAN: Defendants' Answer/ Response: 9/13/2013. File Stipulations: 9/27/2013. All Parties File and Exchange Expert Declarations/Opinions. 10/11/2013. All Parties Exchange Rebuttal Expert Declarations/Opinion: 10/25/2013. Close of Discovery: 10/25/2013. Plaintiffs' Motion for Declaratory Judgment and Permanent Injunction: 10/29/2013. Defendants' Response to Motion: 11/18/2013. Plaintiffs' Reply: 12/2/2013. Oral Argument on Motion: 12/18/2013 at 10:00 a.m., Cincinnati, Courtroom #1, Room 805. Signed by Judge Timothy S. Black on 8/13/2013. (mr1) (Entered: 08/13/2013)
19 ORDER OF EXTENSION OF THE TEMPORARY RESTRAINING ORDER. Signed by Judge Timothy S. Black on 8/13/2013. (mr1) (Entered: 08/13/2013)
NOTICE of Hearing: A Status Conference by telephone is set for 8/30/2013 at 1:00 p.m. before Judge Timothy S. Black. COUNSEL SHALL CALL: 1−888−684−8852; Access code: 8411435; Host Password: 4581; Security code: 123456 and wait on the line for the Court to join the conference. (mr1) (Entered: 08/30/2013)
Minute Entry: This civil action came on before the Court for a status conference by telephone on 8/30/13 at 1:00 p.m. Attorneys Alphonse Gerhardstein, Jacklyn Martin, Lisa Meeks, Jennifer Branch, Bridget Coontz and Aaron Herzig participated. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 08/30/2013)
20 MOTION to Amend/Correct Complaint by Plaintiffs John Arthur, James Obergefell. (Attachments: # 1 Exhibit Amended Complaint) (Gerhardstein, Alphonse) (Entered: 09/03/2013)
21 MOTION for Temporary Restraining Order re David Michener by Plaintiffs John Arthur, James Obergefell. (Attachments: # 1 Exhibit Michener TRO) (Gerhardstein, Alphonse) (Entered: 09/03/2013)
NOTICE of Hearing: A hearing by telephone on Plaintiffs' Motion for Temporary Restraining Order Re: David Michener is set for TODAY, 9/3/13, at 12:00 p.m. before Judge Timothy S. Black. COUNSEL SHALL CALL: 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mr1) (Entered: 09/03/2013)
22 STIPULATION by Plaintiffs John Arthur, James Obergefell. (Gerhardstein, Alphonse) (Entered: 09/03/2013)
Minute Entry: This civil action came on before the Court for a hearing by telephone on Plaintiffs' Motion for a Temporary Restraining Order Re: David Michener (Doc. 21 ). Attorneys Alphonse Gerhardstein, Jacklyn Martin, and Lisa Meeks participated on behalf of Plaintiffs, Attorney Bridget Coontz participated on behalf of the state Defendants, and Attorney Aaron Herzig participated on behalf of Defendant Jones. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 09/03/2013)
NOTATION ORDER: This civil action is before the Court on Plaintiffs' Motion to Amend Complaint (Doc. 20 ). For good cause shown and as Defendants have stipulated that they do not oppose it (Doc 22 ), this motion is hereby GRANTED. Plaintiffs shall file their Amended Complaint forthwith. IT IS SO ORDERED by Judge Timothy S. Black on 9/3/2013. (mr1) (Entered: 09/03/2013)
23 TEMPORARY RESTRAINING ORDER as per David Michener. Signed by Judge Timothy S. Black on 9/3/2013. (mr1) (Entered: 09/03/2013)
24 AMENDED COMPLAINT against All Defendants, filed by James Obergefell, John Arthur. (Gerhardstein, Alphonse) (Entered: 09/03/2013)
If this case is referred, it will be to Magistrate Judge J. Gregory Wehrman. (jlw) (Entered: 09/04/2013)
25 MOTION for Extension of Time to File Response/Reply New date requested 9/20/2013. by Defendants Mike DeWine, John Kasich. (Coontz, Bridget) (Entered:

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 7 of 13

09/13/2013
09/17/2013 09/17/2013 09/17/2013
09/19/2013 09/19/2013 09/19/2013 09/20/2013 09/20/2013
09/25/2013
09/26/2013 10/08/2013 10/10/2013 10/11/2013

09/13/2013)
26 ENTRY AND ORDER − The joint motion for extension of time for all Defendants to respond is hereby GRANTED. All Defendants are ordered to answer or otherwise plead to the Plaintiffs Amended Complaint (ECF Doc. No. 24 ) by September 20, 2013. All other dates on the case management schedule will remain in effect. Signed by Judge Timothy S. Black on 9/13/2013. (mr1) (Entered: 09/13/2013)
27 MOTION to Withdraw as Attorney by Defendants Mike DeWine, John Kasich. (Attachments: # 1 Text of Proposed Order) (Armstrong, Kristopher) (Entered: 09/17/2013)
28 NOTICE of Appearance by Zachery Paul Keller for Defendants Mike DeWine, John Kasich (Keller, Zachery) (Entered: 09/17/2013)
NOTATION ORDER: This civil action is before the Court on Assistant Attorney General Kristopher J. Armstrong's Motion to Withdraw As Co−Counsel for State Defendants Governor John Kasich and Attorney General Mike DeWine (Doc. 27 ). For good cause shown, the motion is hereby GRANTED. IT IS SO ORDERED by Judge Timothy S. Black on 9/17/2013. (mr1) (Entered: 09/17/2013)
29 Second MOTION to Amend/Correct Complaint by Plaintiffs John Arthur, David Brian Michener, James Obergefell. (Attachments: # 1 Exhibit Second Amended Complaint) (Gerhardstein, Alphonse) (Entered: 09/19/2013)
30 MOTION to Dismiss by Defendants Mike DeWine, John Kasich. Responses due by 10/15/2013 (Coontz, Bridget) (Entered: 09/19/2013)
31 ANSWER to 24 Amended Complaint filed by Mike DeWine. (Coontz, Bridget) (Entered: 09/19/2013)
32 ANSWER to 24 Amended Complaint filed by Camille Jones. (Herzig, Aaron) (Entered: 09/20/2013)
NOTICE of Hearing re 29 Second MOTION to Amend/Correct Complaint, 30 MOTION to Dismiss: A Hearing by telephone is set for 9/25/2013 at 9:30 a.m. before Judge Timothy S. Black. COUNSEL SHALL CALL 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mr1) (Entered: 09/20/2013)
Minute Entry and NOTATION ORDER: This civil action came on before the Court for a hearing by telephone on Plaintiffs' Second Motion to Amend the Complaint (Doc. 29 ) and Defendants Governor Kasich and Attorney General DeWine's Motion to Dismiss (Doc. 30 ). Attorneys Alphonse Gerhardstein, Jacklyn Martin, Lisa Meeks, Bridget Coontz, Zachery Keller, Ryan Richardson, and Aaron Herzig participated. For good cause shown, and as Defendants have indicated they do not oppose it, Plaintiffs' Second Motion to Amend the Complaint (Doc. 29 ) is hereby GRANTED. Plaintiffs shall file their Second Amended Complaint forthwith. Consequently, Defendants Kasich and DeWine's Motion to Dismiss is hereby terminated as MOOT. The state Defendant shall file a Motion to Dismiss as to the newly−added Plaintiff Robert Grunn on or before 10/11/13. Plaintiffs shall file their memorandum in opposition by 10/16/13. Defendants shall file their reply memorandum by 10/21/13. IT IS SO ORDERED. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 09/25/2013)
33 AMENDED COMPLAINT (Second) against Camille Jones, Theodore Wymyslo, M.D., filed by James Obergefell, David Brian Michener, John Arthur, Robert Grunn. (Gerhardstein, Alphonse) (Entered: 09/26/2013)
34 DECLARATION of Robert Grunn filed in Support of Amended Complaint 33 by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell (Attachments: # 1 Affidavit of Robert Grunn) (Gerhardstein, Alphonse) Modified to clarify text and create link on 10/9/2013 (tt). (Entered: 10/08/2013)
35 WAIVER OF SERVICE Returned Executed. Waiver sent to Camille Jones on 9/26/2013, answer due 11/25/2013. (Martin, Jacklyn) (Entered: 10/10/2013)
36 ANSWER to 33 Amended Complaint filed by Camille Jones. (Herzig, Aaron) (Entered: 10/11/2013)

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 8 of 13

10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013
10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013 10/14/2013 10/16/2013 10/21/2013 10/22/2013 10/25/2013

37 WAIVER OF SERVICE Returned Executed. Waiver sent to Theodore Wymyslo, M.D. on 9/26/2013, answer due 11/25/2013. (Martin, Jacklyn) (Entered: 10/11/2013)
38 MOTION to Dismiss for Lack of Jurisdiction by Defendant Theodore Wymyslo, M.D.. Responses due by 11/4/2013 (Coontz, Bridget) (Entered: 10/11/2013)
39 ANSWER to 33 Amended Complaint filed by Theodore Wymyslo, M.D.. (Coontz, Bridget) (Entered: 10/11/2013)
40 NOTICE of Appearance by Zachery Paul Keller for Defendant Theodore Wymyslo, M.D. (Keller, Zachery) (Entered: 10/11/2013)
41 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Susan J. Becker (Attachments: # 1 Expert Declaration, # 2 Exhibit Becker Exhibit A, # 3 Exhibit Becker Exhibit B, # 4 Exhibit Becker Exhibit C, # 5 Exhibit Becker Exhibit D, # 6 Exhibit Becker Exhibit E, # 7 Exhibit Becker Exhibit F, # 8 Exhibit Becker Exhibit G, # 9 Exhibit Becker Exhibit H, # 10 Exhibit Becker Exhibit I, # 11 Exhibit Becker Exhibit J, # 12 Exhibit Becker Exhibit K, # 13 Exhibit Becker Exhibit L, # 14 Exhibit Becker Exhibit M, # 15 Exhibit Becker Exhibit N, # 16 Exhibit Becker Exhibit O, # 17 Exhibit Becker Exhibit P, # 18 Exhibit Becker Exhibit Q) (Martin, Jacklyn) (Entered: 10/11/2013)
42 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of George Chauncey (Attachments: # 1 Expert Declaration, # 2 Exhibit Exhibit A, Chauncey CV, # 3 Exhibit Exhibit B, Chauncey Bibliography) (Martin, Jacklyn) (Entered: 10/11/2013)
43 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Megan Fulcher (Attachments: # 1 Expert Declaration) (Martin, Jacklyn) (Entered: 10/11/2013)
44 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Joanna L. Grossman (Attachments: # 1 Expert Declaration, # 2 Exhibit A−Grossman CV, # 3 Exhibit B, Family Law Columns, # 4 Grossman Bibliography) (Martin, Jacklyn) (Entered: 10/11/2013)
45 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Bernard L. McKay (Attachments: # 1 Expert Declaration) (Martin, Jacklyn) (Entered: 10/11/2013)
46 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Letitia Anne Peplau (Attachments: # 1 Expert Declaration, # 2 Exhibit A, Peplau CV, # 3 Exhibit B, Peplau Bibliography) (Martin, Jacklyn) (Entered: 10/11/2013)
47 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Gary M. Segura (Attachments: # 1 Expert Declaration, # 2 Exhibit A, Segura CV, # 3 Exhibit B, Segura Sources) (Martin, Jacklyn) (Entered: 10/11/2013)
48 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of filing Declaration of James Obergefell re Funeral Director (Attachments: # 1 Affidavit of James Obergefell re Funeral Director) (Gerhardstein, Alphonse) (Entered: 10/14/2013)
49 RESPONSE in Opposition re 38 MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell. (Gerhardstein, Alphonse) (Entered: 10/16/2013)
50 REPLY to Response to Motion re 38 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Theodore Wymyslo, M.D.. (Coontz, Bridget) (Entered: 10/21/2013)
51 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Death of Plaintiff John Arthur (Gerhardstein, Alphonse) (Entered: 10/22/2013)
NOTATION ORDER: This civil action is before the Court on Defendant Dr. Theodore Wymyslo's Motion to Dismiss (Doc. 38 ). The Court hereby orders that the parties

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 9 of 13

10/28/2013
10/29/2013
10/29/2013 10/30/2013
11/01/2013 11/15/2013 11/18/2013 11/20/2013 11/20/2013 11/25/2013

present oral argument on the motion on the record by telephone or in Court, 15 minutes a side, on a date, preferably next week, to be determined forthwith. The parties' arguments should focus on the issues of (1) whether the Court can rely on the affidavits of Mr. Grunn and Mr. Obergefell in deciding the Motion to Dismiss; (2) whether a close relationship exists between Mr. Grunn and the parties whose rights he is attempting to vindicate; and (3) whether Mr. Grunn can state a first−party § 1983 claim based on his own rights. Counsel shall forthwith jointly confer with Courtroom Deputy Mary Rogers at 513−564−7640 on the selection of a date and time for this oral argument, and whether by telephone or in Court. IT IS SO ORDERED by Judge Timothy S. Black on 10/25/2013. (mr1) (Entered: 10/25/2013)
NOTICE of Hearing: Oral argument re 38 MOTION to Dismiss for Lack of Jurisdiction is set for 10/30/2013 at 1:30 p.m. in Courtroom 1 − Cincinnati before Judge Timothy S. Black. The parties' arguments should focus on the issues of (1) whether the Court can rely on the affidavits of Mr. Grunn and Mr. Obergefell in deciding the Motion to Dismiss; (2) whether a close relationship exists between Mr. Grunn and the parties whose rights he is attempting to vindicate; and (3) whether Mr. Grunn can state a first−party § 1983 claim based on his own rights. (mr1) (Entered: 10/28/2013)
52 NOTICE by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell of Compliance with Court Orders (Attachments: # 1 Exhibit A, Certificate of Death, John Arthur, # 2 Exhibit B, Certificate of Death, William Herbert Ives) (Gerhardstein, Alphonse) (Additional attachment(s) added on 11/1/2013: # 3 Exhibit A) (mr1). (Additional attachment(s) added on 11/1/2013: # 4 Exhibit B) (mr1). Modified to remove unredacted death certificates and upload redacted death certificates and regenerate NEF on 11/1/2013 (mr1). (Entered: 10/29/2013)
53 MOTION for Permanent Injunction and Declaratory Judgment by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. Responses due by 11/18/2013 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order) (Gerhardstein, Alphonse) (Entered: 10/29/2013)
Minute Entry: This civil action came before the Court on 10/30/13 at 1:30 p.m. for oral argument on Defendant Dr. Theodore Wymyslo's Motion to Dismiss (Doc. 38 ). Attorneys Alphonse Gerhardstein, Adam Gerhardstein, and Jacklyn Martin appeared on behalf of Plaintiffs, along with Plaintiffs James Obergefell and Robert Grunn. Attorneys Bridget Coontz and Zachery Keller appeared on behalf of Defendant Wymyslo. Attorney Aaron Herzig appeared on behalf of Defendant Jones. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 10/30/2013)
54 ORDER DENYING THE MOTION TO DISMISS OF DEFENDANT DR. THEODORE WYMYSLO. Signed by Judge Timothy S. Black on 11/1/2013. (mr1) (Entered: 11/01/2013)
55 Supplemental ANSWER to 33 Amended Complaint filed by Theodore Wymyslo, M.D.. (Coontz, Bridget) (Entered: 11/15/2013)
56 RESPONSE in Opposition re 53 MOTION for Permanent Injunction and Declaratory Judgment filed by Defendant Theodore Wymyslo, M.D.. (Coontz, Bridget) (Entered: 11/18/2013)
57 MOTION for Extension of Time to File Response/Reply as to 56 Response in Opposition to Motion New date requested 12/9/2013. by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. (Gerhardstein, Alphonse) (Entered: 11/20/2013)
NOTATION ORDER: This civil action is before the Court on Plaintiffs' Motion for Extension of Time to File Reply Until December 9, 2013 (Doc. 57 ). As it is unopposed and for good cause shown, the motion is hereby GRANTED. Plaintiffs shall file their reply in support of their Motion for Declaratory Judgment and Permanent Injunction on or before 12/9/13. IT IS SO ORDERED by Judge Timothy S. Black on 11/20/2013. (mr1) (Entered: 11/20/2013)
58 NOTICE of Appearance by Joseph E. La Rue for Amicus Citizens for Community Values (La Rue, Joseph) (Entered: 11/25/2013)

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 10 of 13

11/25/2013 11/25/2013 11/25/2013 11/26/2013
12/09/2013
12/16/2013 12/18/2013
12/20/2013 12/23/2013 12/23/2013 12/23/2013 01/16/2014 01/17/2014 01/22/2014 02/06/2014

59 Corporate Disclosure Statement by Amicus Citizens for Community Values. (La Rue, Joseph) (Entered: 11/25/2013)
60 Unopposed MOTION for Leave to File Brief of Amicus Curiae by Amicus Citizens for Community Values. (La Rue, Joseph) (Entered: 11/25/2013)
61 BRIEF re 60 Unopposed MOTION for Leave to File Brief of Amicus Curiae by Amicus Citizens for Community Values. (La Rue, Joseph) (Entered: 11/25/2013)
NOTATION ORDER: This civil action is before the Court on Amicus Citizens for Community Values' Unopposed Motion for Leave to File Brief of Amicus Curiae (Doc. 60 ). As it is unopposed and for good cause shown, this motion is hereby GRANTED. IT IS SO ORDERED by Judge Timothy S. Black on 11/26/2013. (mr1) (Entered: 11/26/2013)
62 REPLY to Response to Motion re 53 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. (Attachments: # 1 Exhibit A−Whitewood Order, # 2 Exhibit B−Excerpt of Perry Trial Transcript) (Gerhardstein, Alphonse) (Entered: 12/09/2013)
63 NOTICE of Appearance by Ryan L. Richardson for Defendant Theodore Wymyslo, M.D. (Richardson, Ryan) (Entered: 12/16/2013)
Minute entry: This civil action came before the Court on oral argument re: Motion for Permanent Injunction and Declaratory Judgment (Doc. 53 ) on 12/18/2013 at 10:00 a.m. Attorneys Al Gerhardstein, Jacklyn Martin, Lisa Meeks and Jennifer Branch appeared with Plaintiffs James Obergefell, David Michener and Robert Grunn. Attorneys Bridget Coontz, Zachery Keller and Ryan Richard appeared on behalf of the State of Ohio Defendants. Attorney Aaron Herzig appeared on behalf of the City of Cincinnati Defendants. Arguments were heard. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 12/18/2013)
64 NOTICE by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell of Supplemental Authority (Attachments: # 1 Kitchen v. Herbert−Supplemental Authority) (Gerhardstein, Alphonse) (Entered: 12/20/2013)
65 FINAL ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 12/23/2013. (mr1) (Entered: 12/23/2013)
66 DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 12/23/2013. (mr1) (Entered: 12/23/2013)
67 CLERK'S JUDGMENT AFFIRMING FINAL ORDER 65 AND DECLARATORY JUDGMENT AND PERMANENT INJUNCTION 66 . (mr1) (Entered: 12/23/2013)
68 NOTICE OF APPEAL by Defendant Theodore Wymyslo, M.D.. Filing fee $ 505. (Coontz, Bridget) (Entered: 01/16/2014)
USCA Appeal Fees received $ 505 receipt number 100CIN021028 re 68 Notice of Appeal filed by Theodore Wymyslo, M.D. (lk) (Entered: 01/17/2014)
USCA Case Number 14−3057 for 68 Notice of Appeal filed by Theodore Wymyslo, M.D. Case Manager − Cheryl Borkowski. (sct) (Entered: 07/31/2015)
69 Transcript of Proceedings (Informal Status Conference) held on Friday, July 19, 2013, before Judge Timothy S. Black. 15 pages. Court Reporter/Transcriber Mary Ann Ranz (Official), Telephone number 513−564−7500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 11 of 13

02/06/2014 02/07/2014 02/07/2014
02/10/2014
02/13/2014

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 2/27/2014. Redacted Transcript Deadline set for 3/10/2014. Release of Transcript Restriction set for 5/7/2014. (mr1) (Entered: 02/06/2014)
70 MOTION for Attorney Fees by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell. (Attachments: # 1 Gerhardstein Declaration, # 2 Branch Declaration, # 3 Meeks Declaration) (Branch, Jennifer) (Entered: 02/06/2014)
71 NOTICE by Defendant Theodore Wymyslo, M.D. re 70 MOTION for Attorney Fees Agreed Stay of Plaintiffs' Motion (Coontz, Bridget) (Entered: 02/07/2014)
72 Transcript of Proceedings (Motion for Temporary Restraining Order) held on Monday, July 22, 2013, before Judge Timothy S. Black. 45 Pages. Court Reporter/Transcriber Jodie Perkins (Official), Telephone number 513−564−7500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 2/28/2014. Redacted Transcript Deadline set for 3/10/2014. Release of Transcript Restriction set for 5/8/2014. (mr1) (Entered: 02/07/2014)
73 Transcript of Proceedings (Motion for Declaratory Judgment and Permanent Injunction) held on Wednesday, December 18, 2013, before Judge Timothy S. Black. 60 pages. Court Reporter/Transcriber Jodie Perkins (Official), Telephone number 513−564−7500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 3/3/2014. Redacted Transcript Deadline set for 3/13/2014. Release of Transcript Restriction set for 5/12/2014. (mr1) (Entered: 02/10/2014)
74 Transcript of Proceedings (Motion to Dismiss) held on Wednesday, October 30, 2013, before Judge Timothy S. Black. 34 Pages. Court Reporter/Transcriber Jodie Perkins (Official), Telephone number 513−564−7500. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 3/6/2014. Redacted Transcript Deadline set for 3/17/2014. Release of Transcript Restriction set for 5/14/2014. (mr1) (Entered: 02/13/2014)

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 12 of 13

03/21/2014 03/24/2014 04/16/2014 04/22/2014 11/07/2014 11/20/2014 06/29/2015 07/28/2015 07/30/2015 07/30/2015 08/17/2015 08/17/2015 08/18/2015
09/11/2015 09/15/2015 09/24/2015

75 NOTICE of Appearance by Peter J Stackpole for Defendant Camille Jones (Stackpole, Peter) (Entered: 03/21/2014)
76 NOTICE by Defendant Theodore Wymyslo, M.D. re 66 Permanent Injunction (Attachments: # 1 Exhibit A Affidavit of Dr. Theodore Wymyslo) (Coontz, Bridget) (Entered: 03/24/2014)
77 ORDER of USCA as to 68 Notice of Appeal filed by Theodore Wymyslo, M.D. substituting Lance D. Himes, Interim Director of the Ohio Department of Health, for Theodore Wymyslo as appellant. (sct1) (Entered: 04/16/2014)
78 NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of filing transcripts (Attachments: # 1 Exhibit A. July 22nd Hearing Transcript, # 2 Exhibit B. October 30th Hearing Transcript, # 3 Exhibit C. December 18th Hearing Transcript) (Gerhardstein, Alphonse) (Entered: 04/22/2014)
79 ORDER of USCA as to 68 Notice of Appeal filed by Theodore Wymyslo, M.D. in that the judgment of the district court is REVERSED. Mandate to issue. (sem1) (Entered: 11/07/2014)
80 Notice from Supreme Court of the United States. The petition for a writ of certiorari was filed on 11/14/14 and placed on the docket on 11/14/14 as case number 14−556. (sct1) (Entered: 11/21/2014)
81 Notice from Supreme Court of the United States. The petition for a writ of certiorari was argued on 4/28/2015 and decided on 6/26/2015. The judgment of the Court of Appeals for the Sixth Circuit is reversed. (103 pages) (er) (Entered: 06/29/2015)
82 SUPREME COURT JUDGMENT as to 68 Notice of Appeal filed by Theodore Wymyslo, M.D. reversing with costs the judgment of the Court of Appeals for the Sixth Circuit. Note: No Mandate details noted. (sct) (Entered: 07/29/2015)
83 Joint MOTION Agreed Motion Setting Deadline for Plaintiff's' to File Supplemental Motion for Attorney's Fees on September 11, 2015 by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell. (Branch, Jennifer) (Entered: 07/30/2015)
84 NOTICE by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell of Withdrawal of Co−Counsel Jacklyn Gonzales Martin (Martin, Jacklyn) (Entered: 07/30/2015)
85 ORDER of USCA as to 68 Notice of Appeal filed by Theodore Wymyslo, M.D. remanding the appeal to the district court in light of the United States Supreme Court's decision. Note: Mandate to issue. (sct) (Entered: 08/17/2015)
86 MANDATE of USCA as to 68 Notice of Appeal filed by Theodore Wymyslo, M.D. (sct) (Entered: 08/17/2015)
NOTATION ORDER: This civil action is before the Court on the parties' agreed motion to set a 9/11/15 deadline for Plaintiffs to file a supplemental motion for attorneys' fees. (Doc. 83 ). For good cause shown, the agreed motion (Doc. 83 ) is GRANTED. Plaintiffs shall file their supplemental motion for attorneys fees and expenses on or before 9/11/15. The parties' agreed stay as to Plaintiff's initial motion for attorney's fees and expenses (Doc. 71 ) is hereby lifted. IT IS SO ORDERED by Judge Timothy S. Black on 8/18/2015. (mr) (Entered: 08/18/2015)
87 MOTION for Attorney Fees by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. Responses due by 10/5/2015 (Attachments: # 1 Affidavit Gerhardstein, # 2 Affidavit Branch, # 3 Affidavit Meeks, # 4 Affidavit Essig, # 5 Affidavit Sommer, # 6 Affidavit Esseks) (Branch, Jennifer) (Entered: 09/11/2015)
NOTICE of Hearing: This civil action, along with related Case No. 1:14−cv−129, is hereby set for a status conference by telephone on 9/24/15 at 12:30 p.m. COUNSEL SHALL CALL 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. (mr) (Entered: 09/15/2015)
Minute Entry and Notation Order: This civil action, along with related Case No. 1:14−cv−129, came before the Court for a status conference by telephone on 9/24/15 at 12:30 p.m. Attorneys Alphonse Gerhardstein, Jennifer Branch, Susan Sommer,

Case: 1:13-cv-501 As of: 04/05/2018 03:24 PM EDT 13 of 13

09/30/2015
10/15/2015
11/02/2015 11/02/2015 11/02/2015 12/10/2015

Bridget Coontz, Zachery Keller, and Peter Stackpole participated. Plaintiffs and the State Defendants jointly moved the Court to stay briefing on Plaintiffs motion for attorney's fees (Doc. 87 ) so that they could pursue negotiations. For good cause shown, the joint oral motion is GRANTED; briefing on Plaintiffs' motion for attorney's fees (Doc. 87 ) is hereby STAYED through 10/15/15. This civil action, along with related Case No. 1:14−cv−129, is hereby set for an additional status conference by telephone on 10/15/15 at 10:00 a.m. COUNSEL SHALL CALL 1−888−684−8852; Access code: 8411435; Security code: 123456, and wait for the Court to join the conference. IT IS SO ORDERED. (mr) (Entered: 09/24/2015)
NOTATION ORDER: This civil action is before the Court on Plaintiffs' February 6, 2014 motion for attorney's fees and expenses. (Doc. 70 ). On September 11, 2015, Plaintiffs filed a substitute motion for attorney's fees and expenses. (Doc. 87 ). Because Plaintiffs filed a substitute motion for attorney's fees and expenses (Doc. 87 ), their February 6, 2014 motion for attorney's fees and expenses (Doc. 70 ) is terminated as MOOT. IT IS SO ORDERED by Judge Timothy S. Black on 9/30/15. (mr) (Entered: 09/30/2015)
Minute Entry: This civil action, along with related Case No. 1:14−cv−129, came before the Court for a status conference by telephone on 10/15/15 at 10:00 a.m. Attorneys Jennifer Branch and Bridget Coontz participated. The parties advise that these related civil actions have settled. The Court anticipates that it will receive a joint proposed final order on or before 10/23/15 and a joint proposed fee order on or before 10/30/15. (mr) (Entered: 10/15/2015)
88 FINAL JUDGMENT AND DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 11/2/2015. (mr) (Entered: 11/02/2015)
89 STIPULATED JUDGMENT ENTRY. Signed by Judge Timothy S. Black on 11/2/2015. (mr) (Entered: 11/02/2015)
90 JUDGMENT re: Stipulated Judgment Entry for Attorney Fees 89 . (mr) (Entered: 11/02/2015)
91 NOTICE by Defendant Theodore Wymyslo, M.D. re 88 Permanent Injunction, Judgment of Compliance (Coontz, Bridget) (Entered: 12/10/2015)

 
 Obergefell v. Hodges, --- S.Ct. ---- (2015)

2015 WL 213646 Supreme Court of the United States
OBERGEFELL, JAMES, ET AL. v.
HODGES, RICHARD, ET AL.
14-556 | January 16, 2015
Opinion
*1 The case is consolidated and the petition for writ of certiorari is granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license amarriage between two people of the same sex? 2) Does
	  

the Fourteenth Amendment require a state to recognize a marriagebetween two people of the same sex when their marriage was lawfully licensed and performed out-ofstate? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties is limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petition. The briefs of petitioner is to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondent is to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs is to be filed on or before 2 p.m., Friday, April 17, 2015.
	  
	  

1

 
 (Slip Opinion)

OCTOBER TERM, 2014

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO 
 DEPARTMENT OF HEALTH, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 14–556. Argued April 28, 2015—Decided June 26, 2015*
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed.
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28. (a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 3–10. (1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the pe-
—————— * Together with No. 14–562, Tanco et al. v. Haslam, Governor of Ten-
nessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky, also on certiorari to the same court.

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Syllabus
titioners’ own experiences. Pp. 3–6. (2) The history of marriage is one of both continuity and change.
Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.
This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making samesex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 6– 10.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10–27.
(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship in-

Cite as: 576 U. S. ____ (2015)

3

Syllabus
volving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.

4

OBERGEFELL v. HODGES

Syllabus
Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12–18.
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sexbased inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460–461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121.
The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.
(4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protec-

Cite as: 576 U. S. ____ (2015)

5

Syllabus
tion Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22–23.
(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing samesex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 23–27.
(c) The Fourteenth Amendment requires States to recognize samesex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. Pp. 27–28.
772 F. 3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

Cite as: 576 U. S. ____ (2015)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

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

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow

2

OBERGEFELL v. HODGES

Opinion of the Court
persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
I
These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann. §3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoer v. Snyder, 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio,

Cite as: 576 U. S. ____ (2015)

3

Opinion of the Court
Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a samesex marriage licensed and performed in a State which does grant that right.
II
Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.
A
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,

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Opinion of the Court
and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.
That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from

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5

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Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest of time.” App. in No. 14–556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two

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settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.
The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.
B
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes.

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Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil

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Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal status of homosexuals in Bowers v. Hardwick, 478 U. S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romer v. Evans, 517 U. S. 620 (1996), the Court invalidated an amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575.
Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii’s law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is

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defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110 Stat. 2419, defining marriage for all federallaw purposes as “only a legal union between one man and one woman as husband and wife.” 1 U. S. C. §7.
The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to samesex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United States v. Windsor, 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples “who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many

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thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded samesex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).
III
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradi-

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tion guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632, 639–640 (1974); Griswold, supra, at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions,

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has made assumptions defined by the world and time of which it is a part. This was evident in Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.
Still, there are other, more instructive precedents. This Court’s cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would

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be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:
“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

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projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made samesex intimacy a criminal act. And it acknowledged that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: “[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.” Zablocki, 434 U. S., at 384

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(quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows 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.” Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children’s best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22–27.
As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of

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precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:
“There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs.” 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125 U. S. 190, 211 (1888), the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “ ‘a great public institution, giving character to our whole civil polity.’ ” Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the

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basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come

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the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which called for a “ ‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752–773 (Souter, J., concurring in judgment); id., at 789–792 (BREYER, J., concurring in judgments).
That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources

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alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120– 121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This interrelation of the two principles furthers our understanding of what freedom is and must become.
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court

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first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court’s holding that the law burdened a right “of fundamental importance.” 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383–387, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equal protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover-

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ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.
Other cases confirm this relation between liberty and equality. In M. L. B. v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446–454. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed steriliza-

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tion of habitual criminals. See 316 U. S., at 538–543. In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State “cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Id., at 578.
This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.
These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No

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longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as oppositesex couples.
IV
There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer, 772 F. 3d, at 409.
Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities— have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented

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for resolution as a matter of constitutional law. Of course, the Constitution contemplates that democ-
racy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “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.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid.

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Opinion of the Court
It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of samesex couples to marry.
This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190–195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners’ stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and

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Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they

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27

Opinion of the Court
describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
V
These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.
Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. Williams v. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and pro-

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mote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
* * *
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.

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29

AppendOixpiAnitoonoopfinthioenCoofutrhte Court

APPENDICES 

A 
 State and Federal Judicial Decisions 

Addressing Same-Sex Marriage


United States Courts of Appeals Decisions

Adams v. Howerton, 673 F. 2d 1036 (CA9 1982) Smelt v. County of Orange, 447 F. 3d 673 (CA9 2006)
Citizens for Equal Protection v. Bruning, 455 F. 3d 859 (CA8 2006)
Windsor v. United States, 699 F. 3d 169 (CA2 2012) Massachusetts v. Department of Health and Human
Services, 682 F. 3d 1 (CA1 2012) Perry v. Brown, 671 F. 3d 1052 (CA9 2012)
Latta v. Otter, 771 F. 3d 456 (CA9 2014) Baskin v. Bogan, 766 F. 3d 648 (CA7 2014)
Bishop v. Smith, 760 F. 3d 1070 (CA10 2014) Bostic v. Schaefer, 760 F. 3d 352 (CA4 2014)
Kitchen v. Herbert, 755 F. 3d 1193 (CA10 2014) DeBoer v. Snyder, 772 F. 3d 388 (CA6 2014)
Latta v. Otter, 779 F. 3d 902 (CA9 2015) (O’Scannlain, J., dissenting from the denial of rehearing en banc)

United States District Court Decisions

Adams v. Howerton, 486 F. Supp. 1119 (CD Cal. 1980) Citizens for Equal Protection, Inc. v. Bruning, 290
F. Supp. 2d 1004 (Neb. 2003) Citizens for Equal Protection v. Bruning, 368 F. Supp.
2d 980 (Neb. 2005)
Wilson v. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005) Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD Cal.
2005) Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d
1239 (ND Okla. 2006)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Massachusetts v. Department of Health and Human Services, 698 F. Supp. 2d 234 (Mass. 2010)
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (Mass. 2010)
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal. 2010)
Dragovich v. Department of Treasury, 764 F. Supp. 2d 1178 (ND Cal. 2011)
Golinski v. Office of Personnel Management, 824
 F. Supp. 2d 968 (ND Cal. 2012)

Dragovich v. Department of Treasury, 872 F. Supp. 2d
 944 (ND Cal. 2012)

Windsor v. United States, 833 F. Supp. 2d 394 (SDNY
 2012) 

Pedersen v. Office of Personnel Management, 881 
 F. Supp. 2d 294 (Conn. 2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (Haw. 2012)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012) Merritt v. Attorney General, 2013 WL 6044329 (MD La., Nov. 14, 2013) Gray v. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013) Lee v. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013) Kitchen v. Herbert, 961 F. Supp. 2d 1181 (Utah 2013) Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio 2013) Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (ND Okla. 2014) Bourke v. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014) Lee v. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014) Bostic v. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014) De Leon v. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014) Tanco v. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014) DeBoer v. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014) Henry v. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014) Latta v. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014) Evans v. Utah, 21 F. Supp. 3d 1192 (Utah 2014) Whitewood v. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014) Wolf v. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014) Baskin v. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014) Love v. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014) Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July 23, 2014) Bowling v. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014) Brenner v. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014) Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014) General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790 (WDNC 2014) Hamby v. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014) Fisher-Borne v. Smith, 14 F. Supp. 3d 695 (MDNC 2014) Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014) Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL 5320642 (Ariz., Oct. 17, 2014) Guzzo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014) Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157 (PR 2014) Marie v. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128 (Kan., Nov. 4, 2014) Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014) McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665 (SD W. Va., Nov. 7, 2014) Condon v. Haley, 21 F. Supp. 3d 572 (S. C. 2014) Bradacs v. Haley, 58 F. Supp. 3d 514 (S. C. 2014) Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014) Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL 6685391 (ED Ark., Nov. 25, 2014) Campaign for Southern Equality v. Bryant, ___ F. Supp. 3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014) Inniss v. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593 (ND Ga., Jan. 8, 2015)

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AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (S. D., 2015)
Caspar v. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741 (ED Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U. S. Dist. LEXIS 7776 (SD Ala., Jan. 23, 2015)
Strawser v. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015) Waters v. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)

State Highest Court Decisions
Baker v. Nelson, 291 Minn. 310, 191 N. W. 2d 185 (1971) Jones v. Hallahan, 501 S. W. 2d 588 (Ky. 1973) Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993) Dean v. District of Columbia, 653 A. 2d 307 (D. C. 1995) Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999) Brause v. State, 21 P. 3d 357 (Alaska 2001) (ripeness) Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003) In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N. E. 2d 565 (2004) Li v. State, 338 Or. 376, 110 P. 3d 91 (2005) Cote-Whitacre v. Department of Public Health,446 Mass. 350, 844 N. E. 2d 623 (2006) Lewis v. Harris, 188 N. J. 415, 908 A. 2d 196 (2006) Andersen v. King County, 158 Wash. 2d 1, 138 P. 3d 963 (2006) Hernandez v. Robles, 7 N. Y. 3d 338, 855 N. E. 2d 1 (2006) Conaway v. Deane, 401 Md. 219, 932 A. 2d 571 (2007) In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384 (2008) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008) Strauss v. Horton, 46 Cal. 4th 364, 207 P. 3d 48 (2009)

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33

AppendOixpiAnitoonoopfinthioenCoofutrhte Court
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) 
 Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 
 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013) Ex parte State ex rel. Alabama Policy Institute, ___ So. 3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)

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AppendOixpiBnitoonoopfinthioenCoofutrhte Court
B 
 State Legislation and Judicial Decisions

Legalizing Same-Sex Marriage


Legislation

Del. Code Ann., Tit. 13, §129 (Cum. Supp. 2014) D. C. Act No. 18–248, 57 D. C. Reg. 27 (2010) Haw. Rev. Stat. §572 –1 (2006) and 2013 Cum. Supp.)
Ill. Pub. Act No. 98–597 Me. Rev. Stat. Ann., Tit. 19, §650–A (Cum. Supp. 2014) 2012 Md. Laws p. 9
2013 Minn Laws p. 404 2009 N. H. Laws p. 60
2011 N. Y Laws p. 749 2013 R. I. Laws p. 7 2009 Vt. Acts & Resolves p. 33
2012 Wash. Sess. Laws p. 199

Judicial Decisions
Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003)
Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008)
Varnum v. Brien, 763 N. W. 2d 862 (Iowa 2009) Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316 P. 3d 865 (2013) Garden State Equality v. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013)

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1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

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

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the

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ROBERTS, C. J., dissenting
past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

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3

ROBERTS, C. J., dissenting
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

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ROBERTS, C. J., dissenting

I 

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante, at 3. For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. See ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbi-

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ROBERTS, C. J., dissenting
ans. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W. Miller transl. 1913) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).
The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).
This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between

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ROBERTS, C. J., dissenting
a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).
The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.
Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the

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maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.
This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978).
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court.

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Loving, 388 U. S., at 6–7. The majority observes that these developments “were
not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.
B
Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972).
In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has

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shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.
In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.
Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.
II
Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based

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almost entirely on the Due Process Clause. The majority purports to identify four “principles and
traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
A
Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”
This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993). The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291

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U. S. 97, 105 (1934). Allowing unelected federal judges to select which un-
enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical

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opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.
Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.
The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embody-

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ing them conflict with the Constitution.” Id., at 75–76. In the decades after Lochner, the Court struck down
nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).
Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); see DayBrite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955).
Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Our precedents have required that implied fundamental rights be “objec-

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tively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted).
Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009); Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57, 96–101 (2000) (KENNEDY, J., dissenting) (consulting “ ‘[o]ur Nation’s history, legal traditions, and practices’ ” and concluding that “[w]e owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).
Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identify-

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ing fundamental rights, ante, at 10–11, does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).
B
The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.
1
The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.
When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987); Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases

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do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); post, at 11–12, n. 5 (THOMAS, J., dissenting). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” Ante, at 11.
In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a

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single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
2
The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485– 486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438, 453–454, n. 10 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003), which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.
Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneli-

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ness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”
The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.
In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

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3
Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).
To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences

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adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).
The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their

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children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
4
Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” Ante, at 27. This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

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Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.
The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante, at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The

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past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).
III
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Ante, at 20. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:
“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” Ante, at 19.
The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal

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Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009). In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).
It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
IV
The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the

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people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante, at 7–9.
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unre-

26

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solved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of samesex marriage. They see voters carefully considering samesex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding

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this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for

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religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept samesex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring defini-

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tion of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19.
In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
* * *
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.

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SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

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

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

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Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern-

—————— 1 Brief for Respondents in No. 14–571, p. 14.

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ment is supposed to work.2 The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?
Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10

——————
2 Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17).
3 U. S. Const., Art. I, §10. 4 Art. IV, §1. 5 Amdt. 1. 6 Ibid. 7 Amdt. 2. 8 Amdt. 4. 9 Amdt. 10. 10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted).

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“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12 We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its
——————
11 Id., at ___ (slip op., at 17). 12 See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10.

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dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section

——————
14 Ante, at 11. 15 Ibid. 16 Ante, at 10–11. 17 Ante, at 12–18.

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of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
II
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that

——————
18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5.
19 See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015).

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every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often
——————
20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).
21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7). 22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that

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SCALIA, J., dissenting
profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court
——————
allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
23 Ante, at 13. 24 Ante, at 19. 25 Ibid.

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SCALIA, J., dissenting
really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

——————
26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton).

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1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

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

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our

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THOMAS, J., dissenting
Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
I
The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742, 811–812 (2010) (THOMAS, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, §1. Worse, it invites judges to do exactly what the majority has done here—“ ‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue

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THOMAS, J., dissenting
that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.1
II
Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.

——————
1 The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 19. Despite the “synergy” it finds “between th[ese] two protections,” ante, at 20, the majority clearly uses equal protection only to shore up its substantive due process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition.

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A 1
As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.
Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans, 96 U. S. 97, 101–102 (1878). Chapter 39 of the original Magna Carta provided, “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” Id., at 50.
After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the “absolute rights

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of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal security,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id., at 125, 130.2
The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”3 State
——————
2 The seeds of this articulation can also be found in Henry Care’s influential treatise, English Liberties. First published in America in 1721, it described the “three things, which the Law of England . . . principally regards and taketh Care of,” as “Life, Liberty and Estate,” and described habeas corpus as the means by which one could procure one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject’s Inheritance 185 (H. Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used “Liberty” in a narrow sense when placed alongside the words “Life” or “Estate,” see, e.g., id., at 185, 200.
3 Maryland, North Carolina, and South Carolina adopted the phrase “life, liberty, or property” in provisions otherwise tracking Magna Carta: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 1909); see also S. C. Const., Art. XLI (1778), in 6 id., at 3257; N. C. Const., Declaration of Rights, Art. XII (1776), in 5 id., at 2788. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also

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decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. id., at 444–445.
In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”
If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. And this
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N. H. Const., pt. I, Art. XV (1784), in 4 id., at 2455.

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Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In Munn v. Illinois, 94 U. S. 113 (1877), for example, the Court recognized the relationship between the two Due Process Clauses and Magna Carta, see id., at 123–124, and implicitly rejected the dissent’s argument that “ ‘liberty’ ” encompassed “something more . . . than mere freedom from physical restraint or the bounds of a prison,” id., at 142 (Field, J., dissenting). That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses.
2
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.
The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 (1967). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See

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id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13.4
This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C.

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4 Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have . . . to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

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Hyneman & D. Lutz, American Political Writing During the Founding Era 1760–1805, pp. 100, 308, 385 (1983).
The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988). Or as one scholar put it in 1776, “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government §13, p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that would prohibit individuals “from walking in the streets and highways on certain saints days, or from being abroad after a certain time in the evening, or . . . restrain [them] from working up and manufacturing materials of [their] own growth.” Downer, A Discourse at the Dedication of the Tree of Liberty, in 1 Hyneman, supra, at 101. Each of those examples involved freedoms that existed outside of government.
B
Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They

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have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.
Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
To the extent that the Framers would have recognized a natural right to marriage that fell within the broader

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definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14– 556, p. 33.
Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5 They were each sen-
——————
5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong

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tenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U. S. 374 (1978), involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental
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slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28.
Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).
6 The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

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recognition and benefits associated with marriage. In a concession to petitioners’ misconception of liberty,
the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . . liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”
III
The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
A
The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can

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adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored.
That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
B
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.
The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422– 1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established

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religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).
Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious

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practice.7 Although our Constitution provides some protection
against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
IV
Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28.8 The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal”
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7 Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960).
8 The majority also suggests that marriage confers “nobility” on individuals. Ante, at 3. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

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and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.
* * *
Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible

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understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

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SUPREME COURT OF THE UNITED STATES
_________________

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

JAMES OBERGEFELL, ET AL., PETITIONERS

14–556

v.

RICHARD HODGES, DIRECTOR, OHIO

DEPARTMENT OF HEALTH, ET AL.;

VALERIA TANCO, ET AL., PETITIONERS

14–562

v.

BILL HASLAM, GOVERNOR OF

TENNESSEE, ET AL.;

APRIL DEBOER, ET AL., PETITIONERS

14–571

v.

RICK SNYDER, GOVERNOR OF MICHIGAN,

ET AL.; AND

GREGORY BOURKE, ET AL., PETITIONERS

14–574

v.

STEVE BESHEAR, GOVERNOR OF

KENTUCKY

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2015]

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 The question in
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1 I use the phrase “recognize marriage” as shorthand for issuing mar-

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these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting) (slip op., at 7). Indeed:
“In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass.
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riage licenses and conferring those special benefits and obligations
 provided under state law for married persons. 


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309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.
“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted).
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
II
Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States

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encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that samesex marriage serves the States’ objectives in the same way as opposite-sex marriage.
This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This de-
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2 See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2 (Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/

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velopment undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
While, for many, the attributes of marriage in 21stcentury America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.
As I wrote in Windsor:
“The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.
“We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some
——————
nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and available in Clerk of Court’s case file); cf. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing Patterns of Nonmartial Childbearing in the United States, NCHS Data Brief, No. 18 (May 2009), online at http://www.cdc.gov/ nchs/ data/databrief/db18.pdf.

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time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10) (citations and footnotes omitted).
III
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Cite as: 576 U. S. ____ (2015)

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ALITO, J., dissenting
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that

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preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.