Case: 1:14-cv-00129-TSB Doc #: 1 Filed: 02/10/14 Page: 1 of 18 PAGEID #: 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRITTANI HENRY and

:

BRITTNI ROGERS;

:

GEORGIA NICOLE

:

YORKSMITH and

:

Case No. 1:14-cv-129

PAMELA YORKSMITH;

:

KELLY NOE and

:

Judge

KELLY McCRACKEN

:

C/O Gerhardstein & Branch, LPA

:

COMPLAINT FOR

432 Walnut Street, Suite 400

:

TEMPORARY RESTRAINING

Cincinnati, Ohio 45202

:

ORDER AND DECLARATORY

:

AND INJUNCTIVE RELIEF

and

:

:

ADOPTED CHILD DOE

:

JOSEPH J. VITALE and

:

ROBERT TALMAS

:

C/O Gerhardstein & Branch, LPA

:

432 Walnut Street, Suite 400

:

Cincinnati, Ohio 45202

:

:

and

:

:

ADOPTION S.T.A.R., INC.

:

433 W. Loveland Ave.

:

1st Floor

:

Loveland, OH 45140

:

:

Plaintiffs,

:

:

vs.

:

:

THEODORE E. WYMYSLO,

:

M.D.

:

246 N. High Street

:

Columbus, OH 43215

:

In his official capacity as Director of

:

the Ohio Department of Health

:

:

and

:

:

CAMILLE JONES, M.D.

:

In her official capacity as Registrar

:

for the City of Cincinnati Health

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Department,

:

Office of Vital Records

:

1525 Elm Street, 4th floor

:

Cincinnati, OH 45202,

:

:

Defendants.

:

I. PRELIMINARY STATEMENT

1.

This civil rights case is about family and the need of children born in Ohio to have

their birth certificates accurately identify their legal parents. Plaintiffs include four couples who

are building their families on the basis of same-sex marriages celebrated outside of Ohio. They

seek to be treated the same as married opposite-sex couples. Married opposite-sex couples have

both of their names on the birth certificates of their children. Defendants do not treat married

same-sex couples the same. Defendants will permit only one parent from each of these married

same-sex plaintiff couples to be listed on the birth certificates of their children. Plaintiffs

challenge this unequal treatment as unconstitutional. These same Defendants were recently

ordered to recognize valid out-of state marriages between same-sex couples on death certificates.

Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL 6726688 *1 (S.D. Ohio Dec. 23, 2013). The reasoning from that case compels recognition of same-sex marriages on birth certificates.1 All of

the Plaintiffs seek an order requiring Ohio to recognize their same-sex marriages with respect to

their requests for birth certificates. These families established through same-sex marriages must

granted the same status and dignity enjoyed by children and parents in families established

through opposite-sex marriages.

1 See also, Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013) and Bishop v. U.S. ex rel. Holder, 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) holding state laws banning same-sex marriage unconstitutional based on similar reasoning.
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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). 3. Venue is proper under 28 U.S.C. §1391(b)(1).
III. PARTIES 4. Plaintiffs Brittani Henry and Brittni (“LB”) Rogers (“Henry/Rogers Family”) are a married same-sex couple who reside in Cincinnati, Ohio. Brittani Henry is pregnant and is due to deliver a baby boy in Cincinnati in June, 2014. They bring this action individually. 5. Plaintiffs Georgia Nicole (“Nicole”) and Pamela Yorksmith (“Yorksmith Family) are a married same-sex couple who reside in the Cincinnati area. Nicole is pregnant and is due to deliver a baby boy in Cincinnati in June, 2014. They bring this action individually. 6. Plaintiffs Kelly Noe and Kelly McCracken (“Noe/McCracken Family) are a married same-sex couple who reside in Kenton County, Kentucky. Kelly Noe is pregnant and due to deliver a child in Cincinnati, Ohio in June, 2014. They bring this action individually. 7. Plaintiff Adopted Child Doe is an adopted minor child of Plaintiffs Joseph J. Vitale and Robert Talmas. Doe was born in Ohio and resides with his adoptive parents in New York City, New York. He brings this action individually through his adoptive parents. 8. Plaintiffs Joseph (“Joe”) Vitale and Robert (“Rob”) Talmas (“Vitale/Talmas Family”) are a married same-sex couple who reside in New York City, New York. They bring this action individually and as the legally adoptive parents of Adopted Child Doe. 9. Plaintiff Adoption S.T.A.R., Inc. (“Adoption S.T.A.R.”) is a non-profit child placing agency licensed in Ohio. Plaintiff Adoption S.T.A.R. brings this action on behalf of its
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clients who seek to complete adoptions from states such as New York where same-sex married couples are both designated as parents but because the child subject to the adoption was born in Ohio, their clients have been forced to record only one of the parent’s names on the amended birth certificates issued by Defendants rather than the names of both adoptive parents.
10. 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 birth certificates. Defendant Wymyslo is sued in his official capacity for injunctive relief only.
11. Defendant Dr. Camille Jones, Local Registrar, Cincinnati Health Department Office of Vital Records, is responsible for filing birth certificates and ensuring that the personal information on the birth certificate is accurate. Defendant Jones is sued in her official capacity.
IV. FACTS A. Henry/Rogers Family
12. Plaintiffs Brittani Henry and LB Rogers met in 2008. They have been in a loving, committed same-sex relationship since that time.
13. After the decision was rendered in Obergefell v. Wymyslo, the couple formalized their commitment through marriage. On January 17, 2014, they were married in the state of New York.
14. Brittani Henry has worked in the health care field and LB Rogers has worked in the package service industry. Having established a home together and enjoying the loving support of their families, the couple decided that they wanted to have children.
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15. Brittani Henry became pregnant through artificial insemination (“AI”). The sperm donor is anonymous.
16. Brittani Henry is currently 23 weeks pregnant. She expects to deliver a baby boy in June, 2014.
17. LB Rogers consented to and was a full participant in the decision to build their family using AI. From the beginning they intended to raise this child as their own, together.
18. Under Ohio law, the married opposite-sex husband of a woman who gives birth through AI is legally regarded as the natural father of the child and is listed on the birth certificate of the child born to the woman in the state of Ohio.
19. Brittani Henry and LB Rogers are married now and will continue to be a married couple when their child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the New York marriage on the birth certificate of their baby boy.
20. Without action by this Court, Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their son on his birth certificate when he is born in June. Their son will have two parents but will have a birth certificate that only lists one of them as his parent. B. Yorksmith Family
21. Nicole and Pam Yorksmith met and fell in love in 2006. They were married in California on October 14, 2008.
22. The Yorksmith family already includes a three year old son born in 2010 in Cincinnati. He was conceived through AI. The sperm donor is anonymous.
23. Nicole is their son’s birth mother but Pam was fully engaged in the AI process, pregnancy and birth. They share and love their ongoing role as parents.
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24. Only Nicole is listed on their son’s birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI.
25. Failing to have both parents listed on their son’s birth certificate has caused the Yorksmith Family great concern. They have created documents attempting to ensure that Pam will be recognized with authority to approve medical care, deal with child care workers and teachers, travel alone with their son and otherwise address all of the issues parents must resolve.
26. Denying recognition of Pam’s role as parent to their child is degrading and humiliating for the family. Nicole and Pam are treated differently by Defendants than oppositesex married parents who seek a birth certificate for their children born under the same circumstances.
27. Now Nicole is pregnant with their second child. She expects to give birth in June in Cincinnati.
28. Under Ohio law, the married opposite-sex husband of a woman who gives birth through AI is legally regarded as the natural father of the child and is listed on the birth certificate of the child born to the woman in the state of Ohio.
29. Nicole and Pam are married now and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the California marriage on the birth certificate of their baby boy.
30. Without action by this Court, Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their son on his birth certificate when he is born in June. Their son will have two parents but will have a birth certificate that only lists one of them as his parent.
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C. The Noe/McCracken Family 31. Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed
same-sex relationship since 2009. 32. From the beginning of their time together they agreed that they would have
children in their family. 33. They were married in the state of Massachusetts in 2011. 34. Kelly Noe became pregnant through AI. The sperm donor is anonymous. 35. Kelly Noe expects to deliver a baby in a Cincinnati, Ohio hospital in June, 2014. 36. Kelly McCracken consented to and was a full participant in the decision to build
their family using AI. From the beginning they intended to raise this child as their own, together. 37. Under Ohio law, the married opposite-sex husband of a woman who gives birth
through AI is legally regarded as the natural father of the child and is listed on the birth certificate of the child born to the woman in the state of Ohio.
38. Kelly Noe and Kelly McCracken are married now and will continue to be a married couple when their child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the Massachusetts marriage on the birth certificate of their baby.
39. Without action by this Court Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their child on his/her birth certificate when the child is born. Their child will have two parents but will have a birth certificate that only lists one of them as a parent of the child.
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D. Vitale/Talmas Family 40. Plaintiffs Joseph J. Vitale and Robert Talmas (Joe and Rob) met in 1997. They
live and work as executives in corporations in New York City. They love to travel, enjoy nature, and love to spend time with their extended families.
41. Joe and Rob married in New York on September 20, 2011, and commenced work with Adoption S.T.A.R. to start a family through adoption.
42. Adopted Child Doe was born in Ohio in 2013. Custody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Joe and Rob immediately assumed physical custody and welcomed their young boy into their home.
43. On January 17, 2014, an Order of Adoption of Adopted Child Doe was issued by the Surrogate’s Court of the State of New York, County of New York, naming both Joe and Rob as parents. Thus, Joe and Rob are full legal parents of Adopted Child Doe.
44. The Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe’s adoptive name and the names of Joe and Rob as his adoptive parents.
45. Based on the experience of Plaintiff Adoption S.T.A.R.with other clients and their direct communications with the Defendant Wymyslo’s staff at the Ohio Department of Health, Plaintiffs Adopted Child Doe and his parents, Joe and Rob will be denied a birth certificate that lists both Joe and Rob as parents.
46. Opposite-sex couples married in New York who secure an order of adoption from a New York court regarding a child born in Ohio routinely have the child’s adoptive name placed on his or her birth certificate along with the names of both the man and the woman as the parents of the adoptive child. Plaintiffs Joe and Rob will be denied treatment equal to that of similarly
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situated opposite-sex couples and Adopted Child Doe will be denied treatment equal to that of similarly-situated children adopted by opposite-sex couples.
47. Without action by this Court, Defendant Wymyslo will allow only one of these plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Joe and Rob refuse to be forced to pick just one of them to be recognized as their son’s parent and refuse to allow this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life-long risks and harms attendant to having only one of his parents on his birth certificate. They seek relief through this action instead. E. Adoption S.T.A.R.
48. As a result of Ohio’s practice of not amending birth certificates for the adopted children of married same-sex parents, Adoption S.T.A.R. has been forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an accurate amended birth certificate for adopted children born in Ohio. Adoption S.T.A.R. has expended unbudgeted time and money to change its agreements and advise samesex adoptive parents of Ohio’s discriminatory practice, and it has devoted extra time and money to cases like this involving same-sex married couples who adopt children born in Ohio through court actions in other states. The process to seek an accurate birth certificate for Adopted Child Doe – including necessary participation in this lawsuit – is also expected to be a protracted effort that will cause the expenditure of extra time and money.
49. Adoption S.T.A.R. has served same-sex married couples in previous adoption cases and currently is serving other same-sex married couples in various stages of completing the adoption process in other states for children born in Ohio. Adoption S.T.A.R.will serve more same-sex married couples in this capacity in the future. Unless these couples are able to secure
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amended birth certificates from Defendant Wymyslo accurately listing both same-sex married persons as the legal parents of their adopted children, they will have clients unable to secure equal rights and full faith and credit for their adoption decrees. This will impose a significant burden on the agency’sability to provide adequate and equitable adoption services to its clients resulting in incomplete adoptions and loss of revenue, frustrating the very purpose of providing adoption services to its clients. F. The Marriages of the Henry/Rogers, Yorksmith, Noe/McCracken, and Vitale/Talmas Families are Not Recognized in Ohio
50. The Henry/Rogers marriage is legally recognized in New York where it was celebrated.
51. The Yorksmith marriage is legally recognized in California where it was celebrated.
52. The Noe/McCracken marriage is legally recognized in Massachusetts where it was celebrated.
53. The Vitale/Talmas marriage is legally recognized in New York where it was celebrated.
54. The marriages of these plaintiffs are also recognized by the federal government by virtue of the decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013).
55. The marriages of the plaintiffs are not recognized under current Ohio law. 56. Ohio statutory law prohibits legal recognition of the same-sex marriages of the plaintiff couples. Ohio Rev. Code. § 3101.01(C )(2) states, “Any marriage entered into by persons of the same-sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”
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57. The Ohio Constitution also prohibits recognition of the same-sex marriages of the couples. 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.”
58. Unless this Court acts to enjoin these provisions of Ohio law as unconstitutional as applied to these married same-sex plaintiffs they will not be able to secure birth certificates for their children on an equal basis as similarly-situated married opposite-sex parents. Further, without action by this Court, the Vitale/Talmas Family and other families served by Adoption S.T.A.R. will continue to be unlawfully prevented from receiving full faith and credit for their out-of-state adoption decrees as they seek accurate Ohio birth certificates. G. Need for Injunction
59. Defendants Jones and Wymyslo will deny to the Henry/Rogers Family a birth certificate for their baby boy who is due to be born in June 2014 listing both women as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Henry/Rogers same-sex New York marriage.
60. Defendants Jones and Wymyslo will deny to the Yorksmith Family a birth certificate for their baby boy who is due to be born in June 2014 listing both women as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Yorksmith same-sex California marriage.
61. Defendants Jones and Wymyslo will deny to the Noe/McCracken Family a birth certificate for their baby who is due to be born in June 2014 listing both women as the child’s
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parents because Defendants, relying on Ohio law, refuse to recognize the Noe/McCracken samesex Massachusetts marriage.
62. Defendant Wymyslo will deny the Vitale/TalmasFamily an amended birth certificate for their son born in Ohio listing both men as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Vitale/Talmas same-sex New York marriage and New York adoption decree.
63. These actions by Defendants deny to Plaintiffs the same status and dignity that Defendants extend to similarly situated families with opposite-sex parents.
64. These actions also deny the full faith and credit due to the adoption decree declaring both Joe Vitale and Rob Talmas to be the parents of Adopted Child Doe.
65. By denying amended birth certificates to Adopted Child Doe and the expected children of all the other plaintiffs listing both of their parents’ names, the Defendants hinder the ability of the children to receive accurate identity papers and also hinders the ability of their parents to care for and nurture their children. Birth certificates are documents of high importance that prove parental relationship and custody and are required in many instances for parents to exercise their legal right to make decisions for their children. By denying accurate birth certificates to minor children of same-sex married parents, the Defendants violate the equal protection and substantive due process rights of those parents and those children.
66. Defendants have violated the married plaintiffs’ right to remain married. “The right to remain married… is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.” Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL 6726688 *6 (S.D. Ohio Dec. 23, 2013). When one jurisdiction refuses to recognize family relationships legally established in another jurisdiction, “the differentiation demeans the couple,
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whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013). The differential treatment “humiliates tens of thousands of children now being raised by same-sex couples,” including the children that will be born to the Henry/Rogers Family, the Yorksmith Family, the Noe/McCracken Family, and Adopted Child Doe. Id.
67. The right of plaintiffs to remain married and have their lawful family relationships recognized in other states is a fundamental constitutional right. Its violation constitutes irreparable harm as a matter of law.
68. Defendants have violated Plaintiffs’ right to travel. Plaintiffs need accurate amended birth certificates to apply for passports.2 Federal law requires that passport applications include full names of the applicant’s parents.3 Without a birth certificate for their child that accurately records the names of both adoptive parents and the adoptive names of Adopted Child Doe, the Vitale/Talmas Family is unable to secure a passport for their son. Plaintiffs Joe and Rob routinely engage in international and domestic travel, and they have an international trip planned with their son in May 2014 that is not in their power to reschedule. The constitutional right of all plaintiff families to travel is being violated by Defendants’ refusal to issue amended birth certificates that properly list both parents.
69. A birth certificate will be required for Adopted Child Doe and for the children to be born to the Henry/Rogers Family, the Yorksmith Family, and the Noe/McCracken Family to register for public school and to obtain a state identification card or driver’s license.
2 U.S. Department of State, Minors under Age 16, http://travel.state.gov/passport/get/minors/minors_834.html (last visited Jan. 3 2014). 3 U.S. Department of State, New Requirements for U.S. Birth Certificates, http://travel.state.gov/passport/passport_5401.html (last visited Jan. 3, 2014).
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70. Birth certificates are widely used as primary evidence of identity. They are weighty documents of extreme importance. When the authenticity or accuracy of a birth certificate is questioned, huge controversies can result.4 Children are harmed when their parents are not recognized on birth certificates because it is the official document establishing a person’s identity and their family.
71. Plaintiffs have a high likelihood of success on the merits. Many of the constitutional issues raised in this case were decided in favor of the same-sex married couples in Obergefell and Windsor. Obergefell is particularly relevant. There, Defendants were required by the United States District Court for the Southern District of Ohio to record death certificates reflecting same-sex marriages – listing the decedents as “married” and their same-sex spouses as their “surviving spouses.” Their refusal to do so violated the constitutional guarantees of equal protection and substantive due process. Defendants’ constitutional violations in this case are nearly identical to the violations identified and enjoined in Obergefell.
72. The decision in Obergefell firmly establishes that same-sex married couples are equal to opposite-sex married couples as parents and that children raised in families headed by same-sex married parents are just as well-adjusted and healthy as children raised in families headed by opposite-sex married parents. Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL 6726688 *20 (S.D. Ohio Dec. 23, 2013).
73. This Court should take judicial notice of the factual record in the Obergefell case, including the expert declarations filed by the parties.
4 The controversy over President Barack Obama’s birth certificate, which began prior to his presidency, continues today. See Soumya Karlamangla, Los Angeles Times, Crash fuels conspiracists, Dec. 13, 2013, http://articles.latimes.com/2013/dec/13/nation/la-na-hawaii-plane-crash-20131213 (last visited Jan. 3, 2014).
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74. The public interest and the balance of equities favor the plaintiffs as there is no legitimate state interest in denying birth certificates to children of same-sex married couples that accurately list both parents. Nor is there any legitimate basis to deny full faith and credit to adoption decrees declaring two adults of the same sex to be the parents of their adopted child. The only reason Defendants refuse to issue birth certificates to these couples listing them as parents to their children is that they are engaged in same-sex marriages. Denying equal government services and privileges to persons because they are married to persons of the same sex is not a legitimate governmental interest.
75. On information and belief, prior to Governor Kasich, Attorney General DeWine, and Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health was providing same-sex married couple such as plaintiffs Joe and Rob with birth certificates for their adopted children consistent with that requested in this complaint. There is no legitimate state interest to support this change in policy.
76. There is no adequate remedy at law. The Henry/Rogers Family, the Yorksmith Family, the Noe/McCracken Family, the Vitale/Talmas Family, and the families served by Adoption S.T.A.R. are all suffering irreparable harm. There is no harm to the state or local governments by granting a declaratory judgment and an injunction prohibiting Defendants’ enforcement of the challenged statute and Ohio constitutional amendment as applied to the plaintiffs with respect to the issuance of birth certificates. The public interest is clearly served by this Court acting to order recognition of the true nature of the plaintiff families consistent with the manner in which Ohio treats similarly-situated families with opposite-sex parents as applied to the issuance of birth certificates. The public interest is also clearly served by according full
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faith and credit to the duly issued judicial decrees of sister states. Only prompt action by this Federal Court ordering declaratory and injunctive relief will serve the public interest.
V. FIRST CLAIM FOR RELIEF 42 U.S.C. §1983 – United States Constitution 77. Defendants, acting under color of law, have violated rights secured to 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 and will fail to issue birth certificates listing the adult plaintiffs as the legal parents of their children based solely on the fact that they are in a same-sex marriage. This action denies rights owed to both the adult and the child plaintiffs.
VI. SECOND CLAIM FOR RELIEF U.S.C. §1983 – Full Faith and Credit 78. Defendants, acting under color of law, have violated rights secured to plaintiffs Adopted Child Doe, Joseph J. Vitale, Robert Talmas, and clients of Adoption S.T.A.R. by the Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution. Specifically, Defendants have refused to give full faith and credit to a final order of adoption issued by a court of competent jurisdiction in a sister state. VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court: A. Issue a declaratory judgment that the statutory and Ohio Constitutional provisions at issue in this case violate the constitutional rights of these families with same-sex parents married in jurisdictions that authorize same-sex marriage who would be entitled to have both parents on a child’s birth certificate but for the fact that the parents are of the same sex.
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Specifically, this court should declare that the Henry/Rogers Family is entitled to a birth certificate for their child at birth that lists both Brittany Henry and Brittni Rogers as the parents of that child. Also, the Yorksmith Family is entitled to a birth certificate for their child at birth that lists both Georgia Nicole Yorksmith and Pamela Yorksmith as parents of that child. Also, the Noe/McCracken Family is entitled to a birth certificate for their child at birth that lists both Kelly Noe and Kelly McCracken as parents of that child. Finally, the Vitale/Talmas Family is entitled to a birth certificate for Adopted Child Doe listing both Joseph Vitale and Robert Talmas as his legal parents
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 Adoption S.T.A.R. who secure adoption orders for children born in Ohio and who seek birth certificates that record both persons in the marriage as the legal parents.
C. Issue a preliminary and permanent injunction against Defendants and all those acting in concert requiring that they issue to the Henry/Rogers Family a birth certificate for their child at birth that lists both Brittany Henry and Brittni Rogers as the parents of that child; and that they issue to the Yorksmith Family a birth certificate for their child at birth that lists both Georgia Nicole Yorksmith and Pamela Yorksmith as parents of that child; and that they issue to the Noe/McCracken Family a birth certificate for their child at birth that lists both Kelly Noe and Kelly McCracken as parents of that child; and that they issue to the Vitale/Talmas Family a birth certificate listing both Joseph Vitale and Robert Talmas as the legal parents of Adoptive Child Doe. Said injunction shall include a requirement that Defendant Wymyslo and Jones issue instructions to local registrars and Department staff who assist with the completing of Ohio birth
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certificates explaining their duties under the orders of this Court, and said injunction shall

include a requirement that Defendants Wymyslo and Jones issue directives to adoption agencies

and hospitals and all those who have the responsibility for assisting with the completing of Ohio

birth 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.

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
Ellen Essig 105 East Fourth Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com [pro hac vice motion pending] Attorneys 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 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Fax: 513. 345-5543 agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

BRITTANI HENRY and

:

BRITTNI ROGERS, et al.,

:

:

Plaintiffs,

:

:

vs.

:

:

Theodore E. Wymyslo, M.d., et al., :

:

Defendants.

:

Case No. 1:14-cv-129 Judge: Timothy S. Black
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Pursuant to Fed. R. Civ. Pro. 65, Plaintiffs hereby move for a temporary restraining order and preliminary injunction prohibiting the Defendants from enforcing Ohio Rev. Code §3101.01(C) and Art. XV, §11 of the Ohio Constitution as applied to their requests for birth certificates that accurately identify their childrens’ parents. Specifically, Plaintiffs seek an order requiring Defendants to place the names of both of the married plaintiff same-sex parents on the birth certificates of their children. A proposed order is attached as Exhibit 1.
Notice will be provided to the Defendants but due to the inability of Plaintiffs to secure proper identifying documents for the children of the Henry/Rogers Family, the Yorksmith Family, the Noe/McCracken Family and the Vitale/Talmas Family, Plaintiffs request an expedited hearing and an expedited ruling on the merits.
Plaintiffs request that bond be set at $1.00.

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Contents MEMORANDUM OF LAW........................................................................................................ 1 I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (3)............. 1 II. STATEMENT OF FACTS................................................................................................ 2
A. Henry/Rogers Family ..................................................................................................... 2 B. Yorksmith Family .......................................................................................................... 2 C. The Noe/McCracken Family ......................................................................................... 4 D. Vitale/Talmas Family ..................................................................................................... 5 E. Adoption S.T.A.R. .......................................................................................................... 6 F. The Marriages of the Henry/Rogers, Yorksmith, Noe/McCracken, and Vitale/Talmas Families are Not Recognized in Ohio ...................................................................................... 7 G. Need for Injunction ........................................................................................................ 8 III. ARGUMENT.................................................................................................................... 12 A. Standard for Granting Preliminary Relief ................................................................ 12 B. Plaintiffs Have a Substantial Likelihood of Success on the Merits ......................... 13 C. Plaintiffs Are Experiencing Irreparable Harm ......................................................... 20 D. An Injunction Will Not Cause Harm to the Defendants or Anyone Else ............... 24 H. E. The Balance of Hardships and the Public Interest Favor Issuance of an Injunction................................................................................................................................. 24 IV. CONCLUSION ................................................................................................................ 25 CERTIFICATE OF SERVICE ................................................................................................. 26
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TABLE OF AUTHORITIES
Federal Cases McPherson v. Michigan High School Athletic Association, 119 F.3d 453, 459 (6th Cir. 1997)
(en banc)................................................................................................................................... 12 Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991) ............................ 12 Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984) ........................................................................ 12 Women's Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995),
aff'd, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998) .............................. 12
133 S.Ct. at 1693.................................................................................................................... 15, 16 2013 WL 6697874 (D.Utah Dec. 20, 2013) ................................................................................ 14 Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) ........................................................................ 17, 23 Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp., 698 F.3d 885 (6th
Cir.2012) .................................................................................................................................. 24 Amalgamated Transit Union, Local 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp.
1560 (C.D. Cal. 1987) .............................................................................................................. 21 Baker ex rel. Thomas v. Gen. Motors Corp. 522 U.S. 222, (1998)....................................... 17, 18 Bishop v. U.S. ex rel. Holder, 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14,
2014) ......................................................................................................................................... 14 DeLorean, 755 F.2d 1223 ............................................................................................................ 13 Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................... 21 Finstuen v. Crutcher, 469 F.3d 1139 (10th Cir. 2007) .............................................................. 17 Finstuen, 496 F.3d at 1153.......................................................................................................... 18 Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100 (6th Cir. 1982) .................. 13 Griego v. Oliver, No. 34,306, 2013 WL 6670704 (N.M. Dec. 19, 2013) .................................... 14 Herbert v. Kitchen, 13-A-687, 2014 WL 30367 (U.S. Jan. 6, 2014).......................................... 14 Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011)..................................... 21 Jane Doe v. Barron, 92 F.Supp.2d 694 (S.D. Ohio 1999) ......................................................... 12 Kent v. Dulles, 357 U.S. 116 (1958)............................................................................................. 23 Matter of Bosworth, No. 86-AP-903, 1987 WL 14234 (Ohio Ct. App. July 16, 1987)........... 18 Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct. App. May 3, 1991)................ 19 McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312 (1839) ..................................................... 17 McPherson v. Michigan High School Athletic Association, 119 F.3d 453(6th Cir. 1997) ( .... 12 Memphis Planned Parenthood, Inc. v. Sunquist, 175 F.3d 456 (6th Cir. 1999) ...................... 12 Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268 (1935) ................................................... 19, 20 Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013) .. 9, 14, 22 Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 822 F.2d 1390 (6th Cir.1987)
................................................................................................................................................... 21
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Prince v. Massachusetts, 321 U.S. 158 (1944) ............................................................................ 21 Saenz v. Roe, 526 U.S. 489 (1999)......................................................................................... 21, 23 Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th Cir. 1991) ............................................ 12 State ex rel. Smith v. Smith, 75 662 N.E.2d 366 (Ohio 1996).................................................... 18 Tate v. Frey, 735 F.2d 986 (6th Cir. 1984) ................................................................................. 12 Troxel v. Granville, 530 U.S. 57 (2000)....................................................................................... 21 United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013)................................... 7, 10, 13, 14, 22 Women's Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995),..... 12 Statutes Art. XV, §11 of the Ohio Constitution ............................................................................. i, 10, 28 Article IV section 1 of the United States Constitution....................................................... 19, 20 Ohio Rev. Code § 3107.18(A) ..................................................................................................... 20 Ohio Rev. Code §3101.01(C) ......................................................................................................... i Ohio Rev. Code §3101.01(C) (3) and (4) ................................................................................... 28 Ohio Rev. Code. § 3101.01(C )(2) .............................................................................................. 10 Rules Fed. R. Civ. Pro. 65 .................................................................................................................. i, 15
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MEMORANDUM OF LAW I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (3) This civil rights case is about family and the need of children born in Ohio to have birth certificates that accurately identify their legal parents. Birth certificates are the primary identity documents in our society. They name our parents; they define our families. They should be accurate. By purposefully denying to children of same-sex couples birth certificates that accurately identify their legal parents, Ohio is attacking the dignity of all same-sex married couples and imposing life-long harms on their children. This Court should act to stop this unjust discrimination. Plaintiffs include three same-sex female couples married in states where same-sex marriage is legal. These plaintiffs include the Henry/Rogers Family, the Yorksmith Family, and the Noe/McCracken Family. One of the women in each marriage is pregnant through artificial insemination (“AI”). They all used anonymous sperm donors. Their babies will all be born in Cincinnati hospitals in the next few months. If they were in marriages with opposite-sex husbands they would apply for their birth certificates while in the hospital and the Cincinnati registrar would place the names of both parents on the child’s birth certificate. Because these moms are in same-sex marriages, Ohio will only place only one parent on their birth certificates because Ohio does not recognize same-sex marriages from other states. This lawsuit seeks to force Ohio to put both parents on the birth certificates. Plaintiffs also include a male same-sex couple legally married in New York and their son, the Vitale/Talmas Family, and the adoption agency that has helped them adopt their child born in Ohio. The couple has an order of adoption from a New York court stating that both of these married men are the parents of their adopted child. But Ohio will not treat them like an opposite-
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sex married couple. Instead, Ohio will force these two dads to choose and allow only one of their names on the amended birth certificate of their adopted child. These plaintiffs refuse to make that choice. This lawsuit seeks to force Ohio to end that unfair discrimination.
II. STATEMENT OF FACTS A. Henry/Rogers Family1 1. Plaintiffs Brittani Henry and Brittni (“LB”) Rogers met in 2008. They have been in a loving, committed same-sex relationship since that time. 2. After the decision was rendered in Obergefell v. Wymyslo, the couple formalized their commitment through marriage. On January 17, 2014, they were married in the state of New York. 3. Brittani Henry has worked in the health care field and LB Rogers has worked in the package service industry. Having established a home together and enjoying the loving support of their families, the couple decided that they wanted to have children. 4. Brittani Henry became pregnant through AI, and she is due to deliver a baby boy in June 2014. The sperm donor is anonymous. 5. Without action by this Court, Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their son on his birth certificate when he is born. Their son will have two parents but will have a birth certificate that only lists one of them as his parent. B. Yorksmith Family2 1. Nicole and Pam Yorksmith met and fell in love in 2006. They were married in California on October 14, 2008.
1 See Declaration of Brittni Rogers, attached as Exhibit 2. 2 See Declaration of Georgia Nicole Yorksmith, attached as Exhibit 3.
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2. The Yorksmith family already includes a three year old son born in 2010 in Cincinnati. He was conceived through AI. The sperm donor is anonymous.
3. Nicole is their son’s birth mother but Pam was fully engaged in the AI process, pregnancy and birth. They share and love their ongoing role as parents.
4. Only Nicole is listed on their son’s birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI.
5. Failing to have both parents listed on their son’s birth certificate has caused the Yorksmith Family great concern. They have created documents attempting to ensure that Pam will be recognized with authority to approve medical care, deal with child care workers and teachers, travel alone with their son and otherwise address all of the issues parents must resolve.
6. Denying recognition of Pam’s role as parent to their child is degrading and humiliating for the family. Nicole and Pam are treated differently by Defendants than oppositesex married parents who seek a birth certificate for their children born under similar circumstances.
7. Now Nicole is pregnant with their second child. She expects to give birth in June in Cincinnati.
8. Nicole and Pam are married now and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the California marriage on the birth certificate of their baby boy.
9. Without action by this Court, Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their son on his birth certificate when he is born. Their son will have two parents but will have a birth certificate that only lists one of them as his parent.
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C. The Noe/McCracken Family3 10. Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed same-sex relationship since 2009. 11. From the beginning of their time together they agreed that they would have children in their family. 12. They were married in the state of Massachusetts in 2011. 13. Kelly Noe became pregnant through artificial insemination AI. The sperm donor is anonymous. 14. Kelly Noe expects to deliver a baby in a Cincinnati, Ohio hospital in June 2014. 15. Kelly McCracken consented to and was a full participant in the decision to build their family using AI. From the beginning they intended to raise this child as their own, together. 16. Kelly Noe and Kelly McCracken are married now and will continue to be a married couple when their child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the Massachusetts marriage on the birth certificate of their baby. 17. Without action by this Court, Defendants Jones and Wymyslo will list only one of these plaintiffs as a parent of their child on his/her birth certificate when the child is born. Their child will have two parents but will have a birth certificate that only lists one of them as a parent of the child.
3 See Declaration of Kelly Noe, attached as Exhibit 4.
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D. Vitale/Talmas Family4 18. Plaintiffs Joseph J. Vitale and Robert Talmas (Joe and Rob) met in 1997. They live and work as executives in corporations in New York City. They love to travel, enjoy nature and love to spend time with their extended families. 19. Joe and Rob married in New York on September 20, 2011, and commenced work with Adoption S.T.A.R. to start a family through adoption. 20. Adopted Child Doe was born in Ohio in 2013. Custody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Joe and Rob immediately assumed physical custody and welcomed their young boy into their home. 21. On January 17, 2014, an Order of Adoption of Adopted Child Doe was issued by the Surrogate’s Court of the State of New York, County of New York, naming both Joe and Rob as parents. Thus, Joe and Rob are full legal parents of Adopted Child Doe. 22. The Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe’s adoptive name and the names of Joe and Rob as his adoptive parents. 23. Based on the experience of Plaintiff Adoption S.T.A.R. with other clients and their direct communications with the Defendant Wymyslo’ s staff at the Ohio Department of Health, Plaintiffs Adopted Child Doe and his parents, Joe and Rob will be denied a birth certificate that lists both Joe and Rob as parents. 24. Opposite-sex couples married in New York who secure an order of adoption from a New York court regarding a child born in Ohio routinely have the child’s adoptive name placed
4 See Declaration of Joseph Vitale, attached as Exhibit 5.
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on his or her birth certificate along with the names of both the man and the woman as the parents of the adoptive child. Plaintiffs Joe and Rob will be denied treatment equal to that of similarly situated opposite-sex couples and Adopted Child Doe will be denied treatment equal to that of similarly situated children adopted by different-sex couples.
25. Without action by this Court Defendant Wymyslo will allow only one of these plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Joe and Rob refuse to be forced to pick just one of them to be recognized as their son’s parent and refuse to allow this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life-long risks and harms attendant to having only one of his parents on his birth certificate. They seek relief through this action instead.
E. Adoption S.T.A.R.5 26. As a result of Ohio’s practice of not amending birth certificates for the adopted children of married same-sex parents, Adoption S.T.A.R. has been forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an accurate amended birth certificate for adopted children born in Ohio. Adoption S.T.A.R. has expended unbudgeted time and money to change its agreements and advise samesex adoptive parents of Ohio’s discriminatory practice, and it has devoted extra time and money to cases like this involving same-sex married couples who adopt children born in Ohio through court actions in other states. The process to seek an accurate birth certificate for Adopted Child Doe – including necessary participation in this lawsuit – is also expected to be a protracted effort that will cause the expenditure of extra time and money.
5 See Declaration of Barbara Ginn, attached as Exhibit 6.
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27. Adoption S.T.A.R. has served same-sex married couples in previous adoption cases and currently is serving other same-sex married couples in various stages of completing the adoption process in other states for children born in Ohio. Adoption S.T.A.R.will serve more same-sex married couples in this capacity in the future. Unless these couples are able to secure amended birth certificates from Defendant Wymyslo accurately listing both same-sex married persons as the legal parents of their adopted children, they will have clients unable to secure equal rights and full faith and credit for their adoption decrees. This will impose a significant burden on the agency’sability to provide adequate and equitable adoption services to its clients resulting in incomplete adoptions and loss of revenue, frustrating the very purpose of providing adoption services to its clients.
F. The Marriages of the Henry/Rogers, Yorksmith, Noe/McCracken, and Vitale/Talmas Families are Not Recognized in Ohio
28. The Henry/Rogers marriage is legally recognized in New York where it was celebrated.
29. The Yorksmith marriage is legally recognized in California where it was celebrated. 30. The Noe/McCracken marriage is legally recognized in Massachusetts where it was celebrated. 31. The Vitale/Talmas marriage is legally recognized in New York where it was celebrated. 32. The marriages of these plaintiffs are also recognized by the federal government by virtue of the decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013). 33. The marriages of the plaintiffs are not recognized under current Ohio law. 34. Ohio statutory law prohibits legal recognition of the same-sex marriages of the plaintiff couples. Ohio Rev. Code. § 3101.01(C )(2) states, “Any marriage entered into by
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persons of the same-sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”
35. The Ohio Constitution also prohibits recognition of the same-sex marriages of the couples. 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.”
36. Unless this Court acts to enjoin these provisions of Ohio law as unconstitutional as applied to these married same-sex plaintiffs they will not be able to secure birth certificates for their children on an equal basis as similarly situated married opposite-sex parents. Further, without action by this Court the Vitale/Talmas Family and other families served by Adoption S.T.A.R. will continue to be unlawfully prevented from receiving full faith and credit for their out-of-state adoption decrees as they seek accurate Ohio birth certificates.
G. Need for Injunction 37. Defendants Jones and Wymyslo will deny to the Henry/Rogers Family a birth certificate for their baby boy who is due to be born in June 2014 listing both women as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Henry/Rogers same-sex New York marriage. 38. Defendants Jones and Wymyslo will deny to the Yorksmith Family a birth certificate for their baby boy who is due to be born in June 2014 listing both women as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Yorksmith same-sex California marriage.
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39. Defendants Jones and Wymyslo will deny to the Noe/McCracken Family a birth certificate for their baby who is due to be born in June 2014 listing both women as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Noe/McCracken samesex Massachusetts marriage.
40. Defendant Wymyslo will deny the Vitale/TalmasFamily an amended birth certificate for their son born in Ohio listing both men as the child’s parents because Defendants, relying on Ohio law, refuse to recognize the Vitale/Talmas same-sex New York marriage and New York adoption decree.
41. These actions by Defendants deny to Plaintiffs the same status and dignity that Defendants extend to similarly situated families with opposite-sex parents.
42. These actions also deny the full faith and credit due to the adoption decree declaring both Joe Vitale and Rob Talmas to be the parents of Adopted Child Doe.
43. By denying amended birth certificates to Adopted Child Doe and the expected children of all the other plaintiffs listing both of their parents’ names, the Defendants hinder the ability of the children to receive accurate identity papers and also hinders the ability of their parents to care for and nurture their children. Birth certificates are documents of high importance that prove parental relationship and custody and are required in many instances for parents to exercise their legal right to make decisions for their children. By denying accurate birth certificates to minor children of same-sex married parents, the Defendants violate the equal protection and substantive due process rights of those parents and those children.
44. Defendants have violated the married plaintiffs’ right to remain married. “The right to remain married… is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.” Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL
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6726688 *6 (S.D. Ohio Dec. 23, 2013). When one jurisdiction refuses to recognize family relationships legally established in another jurisdiction, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013). The differential treatment “humiliates tens of thousands of children now being raised by same-sex couples,” including the child that will be born to the Henry/Rogers Family, the Yorksmith Family, the Noe/McCracken Family, and Adopted Child Doe. Id.
45. The right of plaintiffs to remain married and have their lawful family relationships recognized in other states is a fundamental constitutional right. Its violation constitutes irreparable harm as a matter of law.
46. Defendants have violated Plaintiffs’ right to travel. Plaintiffs need accurate amended birth certificates to apply for passports.6 Federal law requires that passport applications include full names of the applicant’s parents.7 Without a birth certificate for their child that accurately records the names of both adoptive parents and the adoptive names of Adopted Child Doe, the Vitale/Talmas Family is unable to secure a passport for their son. Plaintiffs Joe and Rob routinely engage in international and domestic travel, and they have an international trip planned with their son in May 2014 that is not in their power to reschedule.8 The constitutional right of all plaintiff families to travel is being violated by Defendants’ refusal to issue amended birth certificates that properly list both parents.
6 U.S. Department of State, Minors under Age 16, http://travel.state.gov/passport/get/minors/minors_834.html (last visited Jan. 3 2014). 7 U.S. Department of State, New Requirements for U.S. Birth Certificates, http://travel.state.gov/passport/passport_5401.html (last visited Jan. 3, 2014). 8See Attached Declaration of Joseph Vitale, Exhibit 5, ¶ 15-16.
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47. A birth certificate will be required for Adopted Child Doe and for the children to be born to the Henry/Rogers Family, the Yorksmith Family, and the Noe/McCracken Family to register for public school and to obtain a state identification card or driver’s license.
48. Birth certificates are widely used as primary evidence of identity. They are weighty documents of extreme importance. When the authenticity or accuracy of a birth certificate is questioned, huge controversies can result.9 Children are harmed when their parents are not recognized on birth certificates because it is the official document establishing a person’s identity and their family.
49. This court should take judicial notice of the factual record in the Obergefell case, including the expert declarations filed by the parties.
50. On information and belief, prior to Governor Kasich, Attorney General DeWine and Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health was providing same-sex married couple such as plaintiffs Joe and Rob with birth certificates for their adopted children consistent with that requested in this complaint. There is no legitimate state interest to support this change in policy.
51. There is no adequate remedy at law. The Henry/Rogers Family, the Yorksmith Family, the Noe/McCracken Family, the Vitale/Talmas Family and the families served by Adoption S.T.A.R. are all suffering irreparable harm. There is no harm to the state or local governments by granting a declaratory judgment and an injunction prohibiting Defendants’ enforcement of the challenged statute and Ohio constitutional amendment as applied to the plaintiffs with respect to the issuance of birth certificates. The public interest is clearly served by this Court acting to order recognition of the true nature of the plaintiff families consistent with
9 The controversy over President Barack Obama’s birth certificate, which began prior to his presidency, continues today. See Soumya Karlamangla, Los Angeles Times, Crash fuels conspiracists, Dec. 13, 2013, http://articles.latimes.com/2013/dec/13/nation/la-na-hawaii-plane-crash-20131213 (last visited Jan. 3, 2014).
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the manner in which Ohio treats similarly situated families with opposite-sex parents as applied to the issuance of birth certificates. The public interest is also clearly served by according full faith and credit to the duly issued judicial decrees of sister states. Only prompt action by this Federal Court ordering declaratory and injunctive relief will serve the public interest.
III. ARGUMENT A. Standard for Granting Preliminary Relief
The standard for evaluating a request for preliminary injunctive relief under Rule 65 is well established in this Circuit. Though, there is no “rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief,” Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984) (citations omitted), the court should consider the following four factors:
(1) Whether the party seeking the injunction has shown a substantial likelihood of success on the merits; (2) Whether the party seeking the injunction will suffer irreparable harm absent the injunction; (3) Whether the injunction will cause others to suffer substantial harm; (4) Whether the public interest would be served by the preliminary injunction. Memphis Planned Parenthood, Inc. v. Sunquist, 175 F.3d 456, 460 (6th Cir. 1999); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). See also Jane Doe v. Barron, 92 F.Supp.2d 694, 695 (S.D. Ohio 1999); Women’s Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995), aff’d, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998). These factors are “to be balanced and [are] not prerequisites that must be satisfied . . . they are not meant to be rigid and unbending requirements.” McPherson v. Michigan High School Athletic Association, 119 F.3d 453, 459 (6th Cir. 1997) (en banc). A finding of irreparable injury “is the single most important prerequisite that the Court must examine when ruling upon a motion for preliminary injunction.”
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Even if the Court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows “‘serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant,’” DeLorean, 755 F.2d 1223, 1229 (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)), or if “the merits present a sufficiently serious question to justify further investigation,” DeLorean, 755 F.2d at 1230.
In this case, as thoroughly set out below and in the accompanying declarations, the plaintiffs meet the test for preliminary relief. Their likelihood of success on the merits, their irreparable harm, the balance of hardships, and the public interest all strongly favor the issuance of an injunction.
B. Plaintiffs Have a Substantial Likelihood of Success on the Merits Plaintiffs are most likely to succeed on the merits because this case follows several recent court decisions holding that states violate the Constitution when they refuse to recognize samesex marriages. The most significant decision was the Supreme Court ruling in U.S. v. Windsor, 133 S. Ct. 2675 (June 26, 2013). In Windsor, the issue was the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for the purposes of federal law. This included marriages from the 12 states and District of Columbia where same-sex couples could legally marry. The Court held that the law was unconstitutional because it violated equal protection and due process principles guaranteed by the Fifth Amendment. In one portion of the decision, the Supreme Court described how discriminatory marriage laws affect families with same-sex parents: “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, ... and it humiliates … children now being raised by same-sex couples.” Windsor, 133 S. Ct. at
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2694 (internal citations omitted). The Court described how discrimination against same-sex couples has an insidious effect on their children: “[It] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. The Windsor Court made it clear that governments harm children when they treat their parents’ love and commitment as worthless. Refusing to recognize a lawful marriage harms the entire family.
In a vigorous dissent, Justice Scalia predicted that lower courts applying the Windsor decision would use it to invalidate state laws prohibiting and refusing to recognize same-sex marriages. Id. at 2710. His prediction has proved accurate.
In the span of one week, three courts released decisions relying upon Windsor that required states to celebrate or recognize same-sex marriages. First, the New Mexico Supreme Court extended marriage rights to same-sex couples. Griego v. Oliver, No. 34,306, 2013 WL 6670704 (N.M. Dec. 19, 2013). Then a federal court in Utah applied Windsor to strike down that state’s constitutional amendment preventing same-sex marriages. Kitchen v. Herbert, 2:13–CV– 00217, 2013 WL 6697874 (D.Utah Dec. 20, 2013) (stayed, Herbert v. Kitchen, 13-A-687, 2014 WL 30367 (U.S. Jan. 6, 2014)). Finally, this Court required the State of Ohio to issue death certificates recording that decedents legally married to a person of the same gender were “married” at death and that they were survived by a “surviving spouse.” Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013). See also Bishop v. U.S. ex rel. Holder, 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) (holding Oklahoma’s constitutional definition of marriage as a union of one man and one woman violated equal protection).
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The Defendants in Obergefell are the same as the Defendants in this case. Plaintiffs have requested that this Court take judicial notice of the extensive record – particularly the expert declarations that have been filed in Obergefell, including the reports of Megan Fulcher and Susan Becker which address issues of marriage, family, and child rearing. In Obergefell, this Court analyzed whether classifications based on sexual orientation should be recognized as a suspect class and afforded heightened scrutiny. Id. at *13. The Court declared that the Sixth Circuit’s prior holdings denying heightened scrutiny based on sexual orientation are no longer sound precedent. Id. The Court went on to analyze the four factors that determine whether classifications qualify as a suspect or quasi-suspect class: whether the class (1) has faced historical discrimination, (2) has a defining characteristic that bears a relation to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at *14. After a thorough discussion, the Court held that “sexual orientation discrimination accordingly fulfills all the criteria the Supreme Court has identified, and thus Defendants must justify Ohio’s failure to recognize same-sex marriages in accordance with a heightened scrutiny analysis.” Id. at *18. The defendants “utterly failed to do so.” Id. This Court also found that Ohio failed the most deferential standard of equal protection analysis because it “is engaging in ‘discrimination[] of an unusual character’ without a rational basis for doing so.” Id. at *19 (quoting Windsor, 133 S.Ct. at 1693). Thus, the Court held that Ohio’s refusal to recognize same-sex marriages performed in other jurisdictions violated the Equal Protection Clause. Id.
The Obergefell Court also recognized that the right to remain married when moving from one state to another is a fundamental liberty interest protected by substantive due process. Id. at *6. The Court found that intermediate scrutiny was appropriate in such a context because “Ohio is intruding into – and in fact erasing – Plaintiffs’ already-established marital and family
15

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relations.” Id. The Court did not find “evidence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose, simply because they are in Ohio, the immensely important dignity, status, recognition, and protection of lawful marriage.” Id. at *9. Accordingly, the court held that “Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages.” Id. In sum, under Supreme Court jurisprudence and recent lower court decisions states do not have governmental interests compelling enough to justify their refusals to celebrate or recognize same-sex marriages. Their refusals violate the substantive due process and equal protection rights of same-sex couples.
Ohio has refused to issue birth certificates to minor children listing both of their parents because their married parents are of the same gender.10 Even though the married Plaintiffs are legally married, Ohio will not list them on their children’s birth certificates. The parallels to Obergefell are obvious. The rationale for refusing recognition on the birth certificates is completely lacking. Ohio has already been found to lack any rational basis for refusing to recognize same-sex marriages on vital records. Just as it lacks a rationale at death, it lacks a rationale at birth. At both ends of the lifespan, a marriage is a marriage and Ohio must recognize its existence in vital records. The harm to these families is life-long. Ohio has no compelling interest or rational basis for its refusal to record the true nature of the Plaintiffs’ families on their children’s birth certificate. As a result, Plaintiffs have a high likelihood of success on their equal protection and due process claims.
The Vitale/Talmas Family and Adoption S.T.A.R. also have a substantial likelihood of success on their full faith and credit clause claim. Article IV section 1 of the United States
10 See Declaration of Georgia N. Yorksmith regarding the birth certificate of her three-year-old and of attorney Barbara Ginn regarding the experience of families with married same-sex parents who have court orders identifying them both as the parents of an adopted child born in Ohio.
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Constitution provides “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The purpose of this clause has always been clear. The framers “foresaw that there would be a perpetual change and interchange of citizens between the several states.” McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312, 315 (1839). Defendants are failing to issue an amended birth certificate as mandated by statute. O.R.C. § 3705.12.11 In so doing, Defendants are violating the Constitution of the United States by failing to give full faith and credit to the judgment of a New York State Court. U.S. Const. Art. IV § 1.
In a similar case, Finstuen v. Crutcher, 469 F.3d 1139 (10th Cir. 2007), a married samesex family from California who had legally adopted a child from Oklahoma was granted an amended birth certificate listing both the child’s adoptive parents. The Tenth Circuit granted this relief under the Full Faith and Credit Clause because Oklahoma had a statute providing for the issuance of amended birth certificates for children adopted in foreign courts, and the Full Faith and Credit Clause required Oklahoma “to apply its own law to enforce [those] adoption order[s] in an ‘even-handed’ manner.” Id. at 1154 citing Baker ex rel. Thomas v. Gen. Motors Corp. 522 U.S. 222, (1998). 12 Ohio also has such a law, O.R.C. § 3705.12, which mandates the issuance of amended birth certificates upon the presentation of a valid adoption decree from another state and the result in this case should therefore be the same.
11 O.R.C. § 3705.12 states, in part, “the department of health shall issue, unless otherwise requested by the adoptive parents, a new birth record using the child's adopted name and the names of and data concerning the adoptive parents . . . .” (emphasis added). When the adoption of a child born in Ohio is decreed by a court in another state and the Department of Health receives from that court an official communication containing information similar to the information Ohio courts must report, the department shall issue a new birth record as if the adoption had occurred in Ohio. Id. at (B). 12 The Fifth Circuit, in Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), did not require Louisiana to issue a birth certificate consistent with a New York adoption order. That case should be distinguished. It pre-dates Windsor and the plaintiffs in that case were an unmarried same-sex couple. Moreover the Louisiana statutory scheme for addressing foreign orders was different from that in Ohio.
17

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Defendant Wymyslo justifies his non-recognition of child Doe’s adoption by citing to Ohio Rev. Code § 3107.18(A): “Except when giving effect to such a decree would violate the public policy of this state, [an adoption decree] issued pursuant to due process of law by a court of any jurisdiction outside this state … shall be recognized in this state … as though the decree were issued by a court of this state.” His staff has indicated that issuing an amended birth certificate to child Doe would recognize his parents’ marriage which violates the public policy of Ohio.13 The Department has read this exception too broadly because its reading conflicts with Ohio Supreme Court precedent and the United States Constitution.
The Tenth Circuit recognized that although it is debatable whether there is a public policy exception related to a state’s requirement to give effect to state laws, there is no such exception to judgments such as adoption decrees:
Regarding judgments ... the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. Finstuen, 496 F.3d at 1153 quoting Baker, 522 U.S. at 232-33). The public policy exception to recognizing foreign adoptions in Ohio has only been invoked where the adoption proceedings in the foreign court may have violated fundamental procedural guarantees of Ohio’s adoption law. See State ex rel. Smith v. Smith, 75 662 N.E.2d 366 (Ohio 1996) (South African adoption not recognized because biological parent not given adequate notice of adoption and opportunity to object); Matter of Bosworth, No. 86-AP-903, 1987 WL 14234 *2 (Ohio Ct. App. July 16, 1987) (Florida adoption decree recognized in Ohio because Florida’s service procedures were followed and “if due process was followed by another state’s court in issuing an adoption decree, an Ohio court is mandated to give full faith and credit
13 See Letter from Ohio Department of Health attached to Declaration of Barbara Ginn, Exhibit 6.
18

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to that state’s decree”); Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct. App. May 3, 1991) (Ohio biological parents lost preferential status when child legally adopted in New York, unless they could claim the New York court lacked jurisdiction). There are no Ohio cases denying recognition of a sister state’s adoption decree for any “public policy” reason other than procedural defects in the adoption proceedings.
Defendants cannot refuse to apply O.R.C. § 3705.12 because of Ohio’s refusal to recognize same-sex marriages. The Supreme Court has held that “credit must be given to the judgment of another state, although the forum would not be required to entertain the suit on which the judgment was founded.” Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 277 (1935) (holding that judgment for taxes from Wisconsin be must honored in Illinois).
Animus against gays and lesbians and same-sex couples is the true basis for Ohio’s refusal to recognize the marriages of the plaintiffs through the birth certificates of their children. The animus is obvious from the very wording of the Ohio marriage ban and recognition ban. But even when a court order requires that both same-sex parents be named on a birth certificate, the current administration in Ohio refuses to do so. This is clear when one tracks how Ohio formerly placed both parents on the birth certificates of children born to same-sex couples through surrogacy but now does not. In these situations one member of the same-sex couple is normally the sperm donor and is the actual biological father. The other member of the couple then typically secures a second parent adoption. Attorney Bill Singer reports on a client he represented in 2007 who secured a second parent adoption in the state of New Jersey. 14 The adopted child was born in Ohio. (Id.) At the time, the couple was in a same-sex civil union and they are now married. (Id.) Ohio honored the adoption decree and placed the same-sex adoptive
14 See Declaration of Bill Singer, Esq., attached as Exhibit 7.
19

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dad as the second parent on the Ohio birth certificate of the Ohio-born child. (Id.) Similarly, in 2010, Mr. Jeffrey Scott Seay also secured a second parent adoption of a child born to a surrogate in Ohio. The adoption was granted through a Washington D.C. Court.15 At the time, he was in a same-sex civil union with his now-husband. (Id.) The Director of the Ohio Department of Health at the time honored the D.C. adoption order and placed Mr. Seay on the adopted child’s birth certificate as the second parent. (Id.) Two years later, Mr. Seay and his partner again extended their family, this time with twins. (Id.) The twins were born to a surrogate in Ohio. (Id.) Mr. Seay was again named as a legal parent when the D.C. Court granted his second parent adoption for those two children. (Id.) This time, the current administration in Ohio refused to place Mr. Seay on the birth certificates of the twins even though the D.C. Court had declared him the adopted dad. (Id.) The flip-flop by Ohio in dealing with out-of-state adoption orders demonstrates that the issue is simply political for Defendant Wymyslo, and it demonstrates the current administration’s animus toward same-sex couples.
For the foregoing reasons, Plaintiffs have a substantial likelihood of success on the merits of their claims.
C. Plaintiffs Are Experiencing Irreparable Harm Plaintiffs are experiencing irreparable harm. Birth certificates are vitally important documents. Ohio’s refusal to issue accurate birth certificates to the Plaintiffs imposes numerous indignities and legal disabilities. Further, the state is violating the Plaintiffs’ fundamental constitutional rights to remain married, to function as a family, and to travel. These violations, disabilities, and indignities all constitute irreparable harm.
15 See Declaration of Jeffrey Scott Seay, attached as Exhibit 8.
20

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The violation of an individual’s fundamental constitutional rights constitutes irreparable harm as a matter of law. See e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”); Saenz v. Roe, 526 U.S. 489, 498 (1999) (violation of right to travel interstate constituted irreparable injury); Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 822 F.2d 1390 (6th Cir.1987) (finding irreparable injury where plaintiff has shown substantial likelihood of success on merits of constitutional challenge to abortion regulation); Amalgamated Transit Union, Local 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp. 1560 (C.D. Cal. 1987) (violation of right to be free of unreasonable seizures during litigation constitutes irreparable harm).
The Defendants have violated Plaintiffs’ fundamental constitutional right to care for their children without interference by the state. “The interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].” Troxel v. Granville, 530 U.S. 57, 65 (2000). It is well-established under the law “that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). “A family’s right to remain together without the coercive interference of the awesome power of the state is the most essential and basic aspect of familial privacy.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). By refusing to issue accurate birth certificates to the Plaintiff families, the State hinders the ability of the Plaintiff parents to care for and nurture their children. Birth certificates are important documents that prove parental custody and are required in many instances for parents
21

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to exercise their legal rights to make decisions for their children.16 By denying accurate birth certificates to minor children of same-sex married parents, the state violates the substantive due process rights of those parents.
Defendants have also violated the married Plaintiffs’ fundamental constitutional right to remain married. “The right to remain married… is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.” Obergefell v. Wymyslo, 1:13-CV-501, 2013 WL 6726688 *6 (S.D. Ohio Dec. 23, 2013). When one jurisdiction refuses to recognize family relationships legally established in another jurisdiction, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify.” U.S. v. Windsor, 133 S.Ct. 2675, 2694 (2013). The differential treatment “humiliates tens of thousands of children now being raised by same-sex couples,” including the children in this case. Id. The right to have your marriage entered into in one state recognized in other states is a fundamental constitutional right. Ohio’s violation of this right constitutes irreparable harm as a matter of law.
Defendants have also violated Plaintiffs’ right to international travel. Plaintiffs need accurate birth certificates to apply for passports.17 Federal law requires that passport applications include full names of the applicant’s parents.18 For the Vitale/Talmas Family, without a birth certificate for their child that accurately records the names of both adoptive parents and Adopted Child Doe’s adoptive name, Plaintiffs Joe and Rob are severely restricted from securing a passport for Adopted Child Doe through normal means. The Vitale/Talmas
16 For example, birth certificates are required to register your child for school and travel internationally, as described below. 17 U.S. Department of State, Minors Under Age 16, http://travel.state.gov/passport/get/minors/minors_834.html (last visited Jan. 3 2014). 18 U.S. Department of State, New Requirements for U.S. Birth Certificates, http://travel.state.gov/passport/passport_5401.html (last visited Jan. 3, 2014).
22

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family has an important wedding of a family friend coming up on May 9, 2014, in the Dominican Republic.19 They want to take their son, who has been asked to be the ring-bearer, but cannot do so without a birth certificate.20 The constitutional right to travel is being violated by Defendant Wymsylo’s refusal to issue an accurate amended birth certificate for Adopted Child Doe, and to issue an accurate birth certificates for the other children of Plaintiff Families when they are born. Such a violation constitutes irreparable harm as a matter of law. See Saenz v. Roe, 526 U.S. 489, 498 (1999) (“The constitutional right to travel from one State to another is firmly embedded in [Supreme Court] jurisprudence”); Kent v. Dulles, 357 U.S. 116 (1958) (The right to travel internationally is protected under the Fifth Amendment).
Although the plaintiff Families could obtain inaccurate birth certificates listing only one parent for the purpose of obtaining a passport and to address other problems, this would put them in the unacceptable situation of having to choose one legal parent, even temporarily. The nonchosen parent could potentially be denied recognition as a parent in the event that something happened to the parent listed on the birth certificate before the birth certificate could be amended. Just as John Arthur in the Obergefell case should not have received a death certificate which inaccurately portrayed his family, the children in the Plaintiff Families in this case should not ever receive official birth certificates that deny the true nature of their families.
Defendants’ refusal to issue accurate birth certificates imposes numerous other disabilities and indignities. The Social Security Administration requires a birth certificate before issuing a social security number.21 A birth certificate is required to register children for school.
19 Declaration of Joe Vitale, ¶ 15-16. 20 Id. 21 See Social Security Administration, Social Security Numbers for Children, http://www.ssa.gov/pubs/EN-0510023.pdf#nameddest=adoptiveparents (last visited Jan. 3, 2014).
23

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A birth certificate is required to obtain identification cards or driver’s licenses.22 And generally, birth certificates are widely used as primary evidence of identity. They are weighty documents of extreme importance and when their authenticity or accuracy is questioned it can result in minor inconveniences as well as huge controversies.23
D. An Injunction Will Not Cause Harm to the Defendants or Anyone Else
An injunction in this case will have no material effect on anyone other than the Plaintiffs, who will benefit greatly. The State of Ohio will not be harmed by continuing to perform its ministerial functions of issuing and amending birth certificates. The public will not be harmed by the Plaintiffs receiving legal documentation accurately recording the true nature of their families. The Plaintiffs are families in the eyes of their neighbors, colleagues, and friends. It is appalling that the State of Ohio is asking them to choose to exclude one of the parents in the eyes of the law.
H. E. The Balance of Hardships and the Public Interest Favor Issuance of an Injunction
In constitutional cases, an inquiry into the public interest is difficult to separate from the likelihood of success on the merits because “the public interest is promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir.2012). In this case, the public interest is clearly served by awarding an injunction. Ohio is not harmed by the treatment of married same-sex couples on an equal basis with unmarried same-sex couples. The harm on the other hand to the married samesex couples and their families is severe. The harm in this case stems from married same-sex
22 See New York State, Department of Motor Vehicles Proofs of Identity and Date of Birth for NYSDMV Photo Documents, http://www.dmv.ny.gov/forms/id44.pdf (last visited Jan. 3, 2014); Ohio Department of Public Safety Bureau of Motor Vehicles “Acceptable Documents List,” http://publicsafety.ohio.gov/links/bmv2424.pdf (last visited February 5, 2014). 23 The controversy over President Barack Obama’s birth certificate, which began prior to his presidency, continues today. See Soumya Karlamangla, Los Angeles Times, Crash fuels conspiracists, Dec. 13, 2013, http://articles.latimes.com/2013/dec/13/nation/la-na-hawaii-plane-crash-20131213 (last visited Jan. 3, 2014).
24

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parents’ inability to secure accurate birth certificates for their children. But the harm imposed on same-sex spouses by Ohio’s refusal to recognize their marriage is much broader. They must meticulously keep powers of attorney, medical power of attorney, and living wills up to date and available. They are denied tax benefits, public benefits and employer benefits that are tied to their status as legally married in Ohio. In Windsor, the Supreme Court stated that there were over 1,000 federal benefits that are impacted. The status of those federal benefits is still at risk for families like Henry/Rogers, Yorksmiths, and Noe/McCracken who are legally married but not residing in a state that recognizes their marriage. But Ohio’s non-recognition also harms families like the Vitale/Talmas Family and other served by Adoption S.T.A.R. who do not live in Ohio, but have adopted a child born in Ohio. The balance of hardships clearly favors relief for the plaintiffs.
IV. CONCLUSION This Court should issue a preliminary injunction restraining the defendants from enforcing Ohio Rev. Code §3101.01(C) (3) and (4) and Art. XV, §11, of the Ohio Constitution as applied to same-sex couples married in jurisdictions where same-sex marriage is legal who seek to have their out of state marriage accepted as legal in Ohio. This includes but is not limited to such officials completing birth certificates as the need arises for the Plaintiffs in a manner consistent with the attached proposed order.
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

/s/ Alphonse A. Gerhardstein Alphonse A. Gerhardstein # 0032053 Trial Attorney for Plaintiffs
Jennifer L. Branch #0038893 Jacklyn Gonzales Martin #0090242
25

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lisameeks@newman-meeks.com
Ellen Essig 105 East Fourth Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com [pro hac vice motion pending] Attorneys for Plaintiffs

Gerhardstein & Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Fax: 513. 345-5543 agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify all defendants were served with a copy of this Motion by email service on February 10, 2014, and putative counsel for defendants have also been served by email on that date.
/s/Alphonse A Gerhardstein

26

 
 Case: 1:14-cv-00129-TSB Doc #: 18 Filed: 02/28/14 Page: 1 of 3 PAGEID #: 561

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRITTANI HENRY and BRITTNI ROGERS, et al.,
Plaintiffs, vs. Theodore E. Wymyslo, M.d., et al.,
Defendants.

: Civil Action No. 1:14-cv-129 : : Judge Timothy S. Black : : Plaintiffs’ Motion for Declaratory : Judgment and Permanent Injunctive : Relief : : : :

Pursuant to Fed. R. Civ. Pro. 57 and 65, Plaintiffs hereby move for:

(1) a declaration that 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 the

jurisdiction of celebration (collectively the “marriage recognition bans”), violate

rights secured by the Fourteenth Amendment to the United States Constitution in that

same-sex couples married in jurisdictions where same-sex marriage is lawful, who

seek to have their out-of-state marriage recognized and accepted as legal in Ohio and

to enjoy the rights, protections and benefits of marriage provided to opposite-sex

married couples under Ohio law, are denied their fundamental right to marriage

recognition without due process of law and their right to equal protection; and

(2) a permanent injunction prohibiting the Defendants and their officers and agents from (a) enforcing the marriage recognition bans, (b) denying same-sex couples validly married in the jurisdiction of celebration all the rights, protections and benefits of

Case: 1:14-cv-00129-TSB Doc #: 18 Filed: 02/28/14 Page: 2 of 3 PAGEID #: 562

marriage provided under Ohio law, and (c) denying full faith and credit to decrees of adoption duly obtained by same-sex couples in sister jurisdictions; and

(3) issuance of birth certificates to the Plaintiffs for their children listing both same sex parents; attorney fees and such other and further relief as this court shall deem fair and reasonable. A memorandum in support and a proposed order are attached hereto.

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
Ellen Essig 105 East Fourth Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com Attorneys 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 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Fax: 513. 345-5543 agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs
Susan L. Sommer M. Currey Cook Lambda Legal Defense & Education Fund, Inc. 120 Wall Street, 19th Floor New York, New York 10005 Phone: 212.809.8585 Fax: 212.809.0055 ssommer@lambdalegal.org ccook@lambdalegal.org Attorneys for Plaintiffs admitted Pro Hac Vice

Case: 1:14-cv-00129-TSB Doc #: 18 Filed: 02/28/14 Page: 3 of 3 PAGEID #: 563
Paul D. Castillo #0081813 Lambda Legal Defense & Education Fund, Inc. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219 Phone: 214.219.8585 Fax: 214.219.4455 Pcastillo@lambdalegal.org Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on February 28, 2014, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically.
/s/Alphonse A Gerhardstein Trial Attorney for Plaintiffs

Case: 1:14-cv-00129-TSB Doc #: 18-1 Filed: 02/28/14 Page: 1 of 36 PAGEID #: 564

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRITTANI HENRY and

:

BRITTNI ROGERS, et al.,

:

:

Plaintiffs,

:

:

vs.

:

:

THEODORE E. WYMYSLO,

:

M.D., et al.,

:

:

Defendants.

Case No. 1:14-cv-129 Judge: Timothy S. Black

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF

Case: 1:14-cv-00129-TSB Doc #: 18-1 Filed: 02/28/14 Page: 2 of 36 PAGEID #: 565
Table of Contents
I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2(a)(3) .............. 1 II. STATEMENT OF FACTS .................................................................................................. 5
A. Henry/Rogers Family ....................................................................................................... 5 B. Yorksmith Family ............................................................................................................ 6 C. The Noe/McCracken Family............................................................................................ 7 D. Vitale/Talmas Family....................................................................................................... 8 E. Adoption S.T.A.R............................................................................................................. 9 III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY RELIEF........ 11 IV. ARGUMENT ..................................................................................................................... 12 A. Defendants Violate Plaintiffs’ Right to Due Process ..................................................... 13
1. As this Court Held in Obergefell, Defendants Infringe the Plaintiff Couples’ Right of Marriage Recognition, Requiring Heightened Scrutiny of the Marriage Recognition Bans 13 2. Defendants Infringe Other Protected Liberty Interests, Including the Right to Parental Autonomy and the Right to Travel ....................................................................................... 15 B. Defendants Violate Plaintiffs’ Right to Equal Protection .............................................. 17 1. Plaintiffs Are Similarly-Situated to Other Couples Whose Marriages and Rights Attendant to Marriage Are Recognized by the State ............................................................ 17 2. Defendants Discriminate on the Basis of Sexual Orientation, Which, as This Court Held in Obergefell, Is Subject to Review Under Heightened Scrutiny ......................................... 19 3. Defendants Discriminate Against the Children of Same-Sex Spouses Based on Disapproval of the Status or Actions of Their Parents, Yet Another Basis for Heightened Scrutiny ................................................................................................................................. 20 C. As This Court Concluded in Obergefell, the Marriage Recognition Bans Do Not Satisfy Rational Basis Review, Much Less Heightened Scrutiny ........................................................ 21 D. The Full Faith and Credit Clause of the U.S. Constitution Compels Ohio to Recognize and Give Effect to the Judicial Decrees of Adoption from Other States, Including for Purposes of Issuing an Amended Birth Certificate Identifying a Same-Sex Couple as an Ohio-Born Child’s Adoptive Parents .......................................................................................................... 24 V. PLAINTIFFS SUFFER IRREPARABLE HARM FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW AND NEED THE CERTAINTY OF INJUNCTIVE AND DECLARATORY RELIEF REGARDING THE RECOGNITION DUE THEIR MARRIAGES AND PARENTAL STATUSES ................................................................................................... 29 VI. CONCLUSION.................................................................................................................. 30 CERTIFICATE OF SERVICE ..................................................................................................... 32
i

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Federal Cases

TABLE OF AUTHORITIES

Adar v. Smith, 639 F.3d 146 (5th Cir. 2011)................................................................................. 28 Baker v. Gen. Motors Corp., 522 U.S. 222 (1988) ........................................................... 25, 26, 28 Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D.
Okla. Jan. 14, 2014) .................................................................................................................. 23 Bostic v. Rainey, No. 2:13-cv-395 , 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ........................ 23 Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .............. 23 Califano v. Westcott, 443 U.S. 76 (1976) ..................................................................................... 19 De Leon v. Perry, No. SA-13-CA-00982-OLG, slip op. (W.D. Texas Feb. 26, 2014)….…..11, 23 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................ 12 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 29 Estin v. Estin, 334 U.S. 541 (1948)............................................................................................... 26 Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) ............................................................... . 28 Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984)........................... 12 Hunter v. Erickson, 393 U.S. 385 (1969) ..................................................................................... 19 Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998).................................................... 12 Kent v. Dulles, 357 U.S. 116 (1958) ............................................................................................. 16 Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874 ............................................................ 24 Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943) ............................................................... 25 Mathews v. Lucas, 427 U.S. 495 (1976) ....................................................................................... 21 McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312 (1839) ....................................................... 25 Meyer v. Nebraska, 262 U.S. 390 (1923) ..................................................................................... 15 Milwaukee Cnty v. M.E., White Co., 296 U.S. 268 (1935) ........................................................... 25 Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013)2, 3, 12,
14, 17, 19, 21, 22, 29 Ohio Citizen Action v. City of Englewood, 671 F.3d 564 (6th Cir. 2012) .................................... 11 Parham v. J.R., 442 U.S. 584 (1979) ............................................................................................ 15 Pickett v. Brown, 462 U.S. 1 (1983) ............................................................................................. 21 Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) ............................................................................ 15 Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................... 20 Saenz v. Roe, 526 U.S. 489 (1999) ......................................................................................... 16, 29 Savoie v. Martin, 673 F.3d 488 (6th Cir. 2012) ............................................................................ 12 Smithkline Beechan Corp. v. Abbott Laboratories, 740 F.3d 471, 2014 U.S. App. LEXIS 1128
(9th Cir. Jan. 21, 2014) ............................................................................................................. 20 Stanley v. Illinois, 405 U.S. 645 (1972) ........................................................................................ 15 Troxel v.Granville, 530 U.S. 57 (2000) ........................................................................................ 15 United States v. Salerno, 481 U.S. 739 (1987) ............................................................................. 11 United States v. Virginia, 518 U.S. 515 (1996) ............................................................................ 19 United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................... 4, 5, 9, 14, 23

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Walton v. Hammons, 192 F.3d 590 (6th Cir. 1999) ...................................................................... 21 Wayne v. Vill. of Sebring, 36 F.3d 517 (6th Cir. 1994) ................................................................ 12 Weber v. Aetna Ca. Sur. Co., 406 U.S. 164 (1972) ...................................................................... 21 Williams v. North Carolina, 317 U.S. 287 (1942) ........................................................................ 26 Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006)............................................. 12 Zablocki v. Redhail, 434 U.S. 374 (1978)..................................................................................... 19 State Cases Griego v. Oliver, No. 34,306, 2013 WL 6670704 (N.M. Dec. 19, 2013)..................................... 24 In re Bonfield, 96 Ohio St. 3d 218, 773 N.E.2d 507 (2002) ........................................................... 4 In re Bonfield, 97 Ohio St. 3d 387 .................................................................................................. 4 In re D.A.. 113 Ohio St. 3d 88, 862 N.E.2d 829 (2007) ............................................................... 15 Matter of Bosworth, No. 86-AP-903, 1987 WL 14234 (Ohio Ct. App. 10th Dist. July 16, 1987)27 Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct. App. 5th Dist. May 3, 1991)..... 27 Sefcik v. Mouyos, 171 Ohio App. 3d 14, 869 N.E.2d 105 (Ohio Ct. App. 11th Dist. 2007) ........ 16 State ex rel. Smith v. Smith, 662 N.E.2d 366 (Ohio 1996)............................................................ 27 Federal Statutes 42 U.S.C. § 1983........................................................................................................................... 28 Article IV, § 1 of the U.S. Constitution .................................................................................... 4, 25 State Statutes Ohio Const. art. XV § 11 .......................................................................................................... 2, 30 Ohio Rev. Code § 3101.01(C) ...................................................................................................... 30 Ohio Rev. Code § 3101.01(C)(2).................................................................................................... 3 Ohio Rev. Code § 3107.03........................................................................................................ 4, 19 Ohio Rev. Code § 3107.18(A) .................................................................................................. 4, 18 Ohio Rev. Code § 3705.08(B)…….……..………………..……………………………………..18 Ohio Rev. Code § 3111.03(A).…....…………………………..…………………………………18 Ohio Rev. Code § 3111.95…………………...……………..……………………………………18 Ohio Rev. Code Ann. § 3313.672(A)(1)....................................................................................... 16
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I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2(a)(3) This civil rights case is about family and the need of children born in Ohio to have birth certificates that accurately identify their legal parents. Birth certificates are the primary identity documents in our society. They name our parents; they define our families. Parents named on a birth certificate are accepting legal responsibilities to feed, clothe, protect, and educate their children. Birth certificates are the prime currency allowing parents to fulfill their constitutionally-protected right to care for their children, providing the standard proof to allow an adult to make critical health care decisions for their child, enroll their child in school, insure their child, and travel with their child. By purposefully denying to children of same-sex couples birth certificates that accurately identify their legal parents, Ohio is attacking the dignity of all samesex married couples and imposing life-long emotional and legal harms on their children. This Court should act to stop this unjust discrimination. Plaintiffs include three same-sex female couples married in states where marriage between same-sex couples is legal. These Plaintiffs include the Henry/Rogers Family, the Yorksmith Family, and the Noe/McCracken Family. One woman in each marriage is pregnant through artificial insemination (“AI”). Each of these Plaintiff couples used anonymous sperm donors. Each couple’s baby will be born in a Cincinnati hospital within the next few months. If they were in marriages with opposite-sex husbands, the couples would apply for their birth certificates while in the hospital and Defendant Dr. Camille Jones, the Cincinnati Vital Statistics Registrar, would place the names of both parents on the child’s birth certificate as a matter of course. Because these mothers are married to same-sex spouses, and Ohio refuses to recognize such out-of-state marriages, Ohio will place only one parent on the birth certificate of each
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couple’s child. This lawsuit seeks to require the State to put both parents on the birth certificates of these expected Ohio children.
Plaintiffs also include a male same-sex couple legally married in New York and their Ohio-born adopted son, the Vitale/Talmas Family, along with the adoption agency that assisted with the adoption. The couple has an order of adoption from a New York court decreeing that both of these married men are the parents of their adopted child. But Ohio will not treat them as it would an opposite-sex married couple and accord the full faith and credit due to their New York adoption decree. Instead, Ohio will allow only one of these two parents to appear on their child’s amended birth certificate, attempting to force these two fathers to choose which of them will be recorded on the birth certificate as the parent of their son. These Plaintiffs cannot be forced by Ohio to make that choice. Ohio’s current practice of intentionally issuing a legally inaccurate official birth certifcate containing the name of only one adoptive parent permanently chronicles discrimination on a child’s primary, life-long identity document. This lawsuit seeks to require Ohio to end that unfair discrimination.
The Defendants in this case are the same government officials sued in Obergefell v. Wymyslo, No. 1:13-CV-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013), in which this Court recently declared Ohio’s statutory and constitutional bans to recognition of out-of-state marriages between same-sex couples unconstitutional. As this Court noted in Obergefell, Ohio’s statutory and constitutional marriage recognition bans, both enacted in 2004, single out only same-sex couples to deny recognition to their marriages, when other out-of-state marriages, similarly unavailable within Ohio, are invariably accorded comity. Obergfell, 2013 WL 6726688, at *2-3. See Ohio Const. art. XV § 11 (“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.”);
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Ohio Rev. Code § 3101.01(C)(2) (“Any marriage entered into by persons of the same-sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”) (collectively, the “marriage recognition bans”). The marriage recognition bans are extraordinary, animus-driven measures, whose “clear primary purpose and practical effect” is “to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community.” Obergefell, 2013 WL 6726688, at *21. In Obergefell, Ohio refused state-issued death certificates naming the lawfully married spouses of the decedents. Here Ohio denies state-issued birth certificates listing both same-sex spouses as parents to their children. Ohio’s refusal to recognize marriages between same-sex couples has thus damaged lesbian and gay married couples and their families through the lifespan, from birth to death. Just as in Obergefell, Ohio can proffer no legitimate or rational state interest that could justify denying recognition to the out-of-state marriages of same-sex couples. Id. at *20-21.1
This Court’s reasoning and holding in Obergefell are templates for consideration of this case, and should dictate the same outcome here. The Court declared the marriage recognition bans unconstitutional and unenforceable under the due process and equal protection guarantees of the Fourteenth Amendment of the United State Constitution. Id. at *23. Plaintiffs now seek a ruling that the marriage recognition bans are facially unconstitutional and must be struck down in Ohio.
1 This Court may take judicial notice of the record in Obergefell, including the extensive expert declarations filed in that case. Significantly, the Defendants in Obergefell – the same Defendants as in this case – did not submit any evidence to challenge plaintiffs’ evidence. The expert declarations in Obergefell are hereby submitted in support of this motion as well. See Docs. 17-1, and 17-3 through 17-9. Defendants do not object to this Court taking judicial notice of the entire record, including the expert declarations, in Obergefell. Defendant Director of the Ohio Department of Health’s Answer to the Plaintiffs’ Complaint, Doc. 15, ¶ 73.
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This action also challenges application of Ohio Rev. Code § 3107.18(A) to bar recognition of the out-of-state adoption decrees of same-sex parents. That statute provides: “[e]xcept when giving effect to such a decree would violate the public policy of this state, [an adoption decree] issued pursuant to due process of law by a court of any jurisdiction outside this state . . . shall be recognized in this state . . . as though the decree were issued by a court of this state.” (Emphasis supplied.) Defendant Wymyslo, Director of the Ohio Department of Health, interprets this provision to allow full faith and credit to a two-parent adoption decree only if the out-of-state adoption meets Ohio’s purported restriction limiting adoptions by two persons to a married “husband and wife.” Ohio Rev. Code § 3107.03.2 Not only does Defendant Wymyslo thereby give further effect to the discriminatory marriage recognition bans by refusing to acknowledge that the Plaintiff adoptive couple in this case is married, but he also violates the State’s obligation to accord adoption decrees full faith and credit under Article IV, § 1 of the U.S. Constitution, which allows no “public policy” exception when it comes to inter-state recognition of a judicial decree.
Worst of all, denial of birth certificates accurately identifying both of a child’s parents levies special harms on the children of married same-sex parents, in violation of the parents’ and childrens’ constitutional rights and the State’s paramount duty to protect the best interests of Ohio-born children. In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court expressly condemned the harm to children wrought by the federal government’s refusal to recognize the marriages of their same-sex parents, decrying the “humiliat[ion],”id. at 2694;
2 See Letter from Ohio Department of Health attached to Declaration of Barbara Ginn, Ex. 6 to Motion for TRO, Doc. 4-6, Page ID 73-74. The Ohio Supreme Court has expressly declined to rule on whether second parent adoption by the unmarried partner of a parent is permissible in Ohio, leaving the issue an open question in that court. Compare In re Bonfield, 96 Ohio St. 3d 218, 219, 773 N.E.2d 507 (2002), with In re Bonfield, 97 Ohio St. 3d 387, 38-89, 780 N.E.2d 241 (2002) (stripping out any reference to the legality of second parent adoption in Ohio, leaving the issue open).
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“financial harm,” id. at 2695; and stigma, id. at 2696, imposed on children by governmental disrespect for their parents’ marriages. The Court described the insidious effect on children of discrimination against their lesbian and gay parents: “[It] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. at 2694. Windsor made clear that governments injure children when they treat their parents’ love and commitment as worthless. Refusing to recognize a lawful marriage harms the entire family.
Defendants inflict these same unjustified and irreparable injuries on the children and parents involved in this case. Plaintiffs are entitled to a declaratory judgment and a permanent injunction ending this discrimination.
II. STATEMENT OF FACTS3 A. Henry/Rogers Family4
1. Plaintiffs Brittani Henry (“Brittani”) and Brittni (“LB”) Rogers met in 2008. They have been in a loving, committed same-sex relationship since that time.
2. After the decision was rendered in Obergefell, the couple formalized their commitment through marriage. On January 17, 2014, they were validly married in the state of New York, which legally recognizes their marriage.
3. Brittani has worked in the health care field, and LB has worked in the package service industry. Having established a home together and enjoying the loving support of their families, the couple decided they wanted to have children.
3 Defendant Wymyslo “does not dispute” any of the personal information provided by Plaintiffs in the Complaint. See Defendant Director of the Ohio Department of Health’s Answer to the Plaintiffs’ Complaint, Doc. 15, Page ID 117, n.1, and ¶¶ 4-8, 12-17, 21-23, 27, 31-36, 40-44. 4 See Declaration of Brittni Rogers, Doc. 4-2.
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4. Brittani became pregnant through AI, and she is due to deliver a baby boy in June 2014. The sperm donor is anonymous.
5. Without action by this Court, Defendants Jones and Wymyslo will list only one of these Plaintiffs as a parent of their son on his birth certificate when he is born. Their son will have two parents but will have a birth certificate that lists only one of them as his parent.
B. Yorksmith Family5 6. Nicole and Pam Yorksmith met and fell in love in 2006. They were married on October 14, 2008 in California, which legally recognizes their marriage. 7. The Yorksmith Family already includes a three-year-old son born in 2010 in Cincinnati. He was conceived through AI. The sperm donor is anonymous. 8. Nicole is their son’s birth mother, but Pam was fully engaged in the AI process, pregnancy, and birth. They share and love their ongoing role as parents. 9. Only Nicole is listed on their son’s birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI. 10. Failing to have both parents listed on their son’s birth certificate has caused the Yorksmith Family great concern. They have created documents attempting to ensure that Pam will be recognized with authority to approve medical care, deal with child care workers and teachers, travel alone with their son, and otherwise address all the issues parents must resolve. 11. Denying recognition of Pam’s role as parent to their child is degrading and humiliating for the family. Defendants treat Nicole and Pam differently than opposite-sex married parents who seek a birth certificate for their children born under similar circumstances.
5 See Declaration of Georgia Nicole Yorksmith, Doc. 4-3.
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12. Now Nicole is pregnant with their second child. She expects to give birth in June in Cincinnati.
13. Nicole and Pam are married now and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the California marriage and both married spouses on the birth certificate of the Yorksmith’s baby boy.
14. Without action by this Court, Defendants Jones and Wymyslo will list only one of these Plaintiffs as a parent of their son on his birth certificate when he is born. Their son will have two parents but will have a birth certificate listing only one as his parent.
C. The Noe/McCracken Family6 15. Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed same-sex relationship since 2009. 16. From the beginning of their time together they agreed that they would have children in their family. 17. They were married in 2011 in the state of Massachusetts, which legally recognizes their marriage. 18. Kelly Noe became pregnant through AI. The sperm donor is anonymous. 19. Kelly Noe expects to deliver a baby in a Cincinnati, Ohio hospital in June 2014. 20. Kelly McCracken consented to and was a full participant in the decision to build their family using AI. From the beginning they intended to raise this child as their own, together. 21. Kelly Noe and Kelly McCracken are married now and will continue to be a married couple when their child is born. But Defendants have taken the position that they are prohibited
6 See Declaration of Kelly Noe, Doc. 4-4.
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under Ohio law from recognizing the Massachusetts marriage and the marital presumption of parentage that should apply to this family for purposes of naming both parents on the baby’s birth certificate.
22. Without action by this Court, Defendants Jones and Wymyslo will list only one of these Plaintiffs as a parent on the baby’s birth certificate when the child is born. The couple’s child will have two parents but will have a birth certificate that lists only one parent.
D. Vitale/Talmas Family7 23. Plaintiffs Joseph J. Vitale (“Joe”) and Robert Talmas (“Rob”) met in 1997. They live in New York City, where they work as corporate executives. They love to travel, enjoy nature, and love to spend time with their extended families. 24. Joe and Rob married on September 20, 2011 in New York, which legally recognizes their marriage. The couple commenced work with Plaintiff Adoption S.T.A.R. to start a family through adoption. 25. Adopted Child Doe was born in Ohio in 2013. Custody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Joe and Rob immediately assumed physical custody and welcomed their young boy into their home. 26. On January 17, 2014, an Order of Adoption of Adopted Child Doe was duly issued by the Surrogate’s Court of the State of New York, County of New York, naming both Joe and Rob as parents. Thus, Joe and Rob are full legal parents of Adopted Child Doe.8
7 See Declaration of Joseph Vitale, Doc. 4-5. 8 See Final Decree of Adoption (redacted), attached as Exhibit A to Declaration of Alphonse A. Gerhardstein, Doc. 17-2.
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27. The Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe’s adoptive name and naming Joe and Rob as his adoptive parents.
28. Based on the experience of Plaintiff Adoption S.T.A.R. with other clients and their direct communications with Defendant Wymyslo’ s staff at the Ohio Department of Health, Plaintiffs Adopted Child Doe and his parents, Joe and Rob, will be denied a birth certificate that lists both men as parents.
29. As a matter of routine, opposite-sex couples married in New York who secure an order of adoption from a New York court regarding a child born in Ohio have the child’s adoptive name placed on his or her birth certificate along with the names of both spouses as the parents of the adoptive child. Plaintiffs Joe and Rob will be denied treatment equal to that of similarly situated opposite-sex couples, and Adopted Child Doe will be denied treatment equal to that of similarly situated children adopted by opposite-sex couples.
30. Without action by this Court, Defendant Wymyslo will allow only one of these Plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Joe and Rob refuse to be forced to choose just one of them to be recognized as their son’s parent and refuse to allow this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life-long risks and harms attendant to having only one of his parents on his birth certificate. They seek relief through this action instead.
31. The marriages of these Plaintiff couples are also recognized by the federal government by virtue of the decision in United States v. Windsor, 133 S. Ct. 2675 (2013).
E. Adoption S.T.A.R.9
9 See Declaration of Barbara Ginn, Doc. 4-6.
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32. On information and belief, prior to when Governor Kasich, Attorney General DeWine, and Defendant Wymyslo took office in January, 2011, the Ohio Department of Health provided same-sex married couples such as Plaintiffs Joe and Rob with birth certificates for their adopted children, consistent with that requested in this complaint. Defendant Wymyslo has changed that practice, and now denies married same-sex couples with out-of-state adoption decrees amended birth certificates for their Ohio-born children naming both adoptive parents.10
33. As a result of Ohio’s practice not to amend birth certificates for the adopted children of married same-sex parents, Adoption S.T.A.R. has been forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an accurate amended birth certificate for adopted children born in Ohio. Adoption S.T.A.R. has expended unbudgeted time and money to change its agreements and advise same-sex adoptive parents of Ohio’s discriminatory practice. It has devoted extra time and money to cases like this involving same-sex married couples who adopt children born in Ohio through court actions in other states. The process to seek an accurate birth certificate for Adopted Child Doe – including necessary participation in this lawsuit – is expected to be a protracted effort that will cause the expenditure of extra time and money.
34. Adoption S.T.A.R. has served same-sex married couples in previous adoption cases and currently is serving other same-sex married couples in various stages of the adoption process in other states for children born in Ohio. Adoption S.T.A.R. will serve additional same-sex married couples in this capacity in the future. Unless these couples are able to secure amended birth certificates from Defendant Wymyslo accurately listing both same-sex married persons as the legal parents of their adopted children, Adoption S.T.A.R. will have clients unable to secure
10 See Decls. of William S. Singer, Jeffrey Scott Seay, and Barbara Ginn, Docs. 4-6 through 4-8.
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equal rights and full faith and credit for their adoption decrees. This will impose a significant burden on the agency’s ability to provide adequate and equitable adoption services to its clients, result in incomplete adoptions and loss of revenue, and frustrate the very purpose of providing adoption services to its clients.
III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs seek a permanent injunction enjoining enforcement of the marriage recognition bans. They also seek an injunction requiring Defendants to accord full faith and credit to out-ofstate adoption decrees of same-sex parents, including for purposes of issuing birth certificates identifying the adoptive parents and the adopted child’s correct name. In this case the Plaintiffs go beyond the as-applied challenge pursued in Obergefell and now seek a declaration that the marriage recognition bans are facially unconstitutional, invalid, and unenforceable. In other words, “no set of circumstances exists under which the [challenged marriage recognition bans] would be valid,” and the bans should therefore be struck down in their entirety. United States v. Salerno, 481 U.S. 739, 745 (1987); see also De Leon v. Perry, No. SA-13-CA-00982-OLG, slip op. at 46 n.7 (W.D. Texas Feb. 26, 2014) (declaring that Texas’s ban on same-sex marriages and marriage recognition “fails the constitutional facial challenge because. . . Defendants have failed to provide any – and the Court finds no – rational basis that banning same-sex marriage furthers a legitimate governmental interest.”). The case is limited to the issue of marriage recognition and does not include any request that Ohio must permit same-sex couples to marry in Ohio. Additional litigation seeking such broader relief may be pursued later.
“A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir.
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2012); Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)); Obergefell, 2013 WL 6726688, at *4. It lies within the sound discretion of the district court to grant or deny a motion for permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Obergefell, 2013 WL 6726688, at *4, citing Kallstrom, 136 F.3d at 1067; Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994).
The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, “[t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)); see also Obergefell, 2013 WL 6726688, at *5. Plaintiffs are entitled to both permanent injunctive and declaratory relief.
IV. ARGUMENT This Court has already held in Obergefell that Ohio’s refusal to recognize the out-of-state
marriages of same-sex couples violates the Fourteenth Amendment due process “right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.” 2013 WL 6726688, at *5. Defendants again refuse to recognize the marriages of the Plaintiff couples and to afford their families the “attendant benefits and protections” that come with a birth certificate reflecting both spouses as parents of the families’ children.
This Court further held in Obergefell that the same marriage recognition bans challenged in this case “violate Plaintiffs’ constitutional rights by denying them equal protection of the
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laws.” Id. at *9. The Court declared the marriage recognition bans unconstitutional and unenforceable. Plaintiffs respectfully submit that this Court’s reasoning in Obergefell, applied to the facts of this case, should compel the same conclusion — Ohio’s marriage recognition bans unjustifiably violate due process and equal protection guarantees. Indeed, following the Supreme Court’s Windsor ruling, a spate of federal and state courts around the nation have issued rulings similar to Obergefell, holding that a state’s ban on the right of same-sex couples to marry11 or to have their out-of-state marriages recognized violates the constitutional rights of these families.
The full faith and credit claim is equally strong and provides an independent ground for relief to the Vitale/Talmas Family and to other families like theirs whose out-of-state adoption decrees are disrespected by Defendant Wymsylo for purposes of receiving the accurate birth certificates their Ohio-born children need to travel securely through life.
Plaintiff families will suffer ongoing irreparable harm from Defendants’ refusal to recognize their marriages and grant accurate birth certificates protecting their children. The injunctive and declaratory relief sought is necessary to ensure that the Plaintiff families, and Adoption S.T.A.R. and its clients, are relieved of the multiple disabilities caused by Ohio’s ongoing violations of protected constitutional rights.
A. Defendants Violate Plaintiffs’ Right to Due Process 1. As this Court Held in Obergefell, Defendants Infringe the Plaintiff Couples’ Right of Marriage Recognition, Requiring Heightened Scrutiny of the Marriage Recognition Bans
Defendants violate the married Plaintiffs’ right to remain married, which this Court identified as “a fundamental liberty interest appropriately protected by the Due Process Clause of
11 Plaintiffs, who are already married, do not contest here Ohio’s ban on the freedom to marry within the State.
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the United States Constitution.” Obergefell, 2013 WL 6726688, at *6. “When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.” Id. at *7. See also Windsor, 133 S. Ct. at 2694 (When one jurisdiction refuses recognition to family relationships legally established in another, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify.”). The differential treatment “humiliates tens of thousands of children now being raised by same-sex couples,” id., including Adopted Child Doe and the children who will be born to the Henry/Rogers, Yorksmith, and Noe/McCracken families. In Obergefell, for purposes of the due process claim, this Court applied intermediate scrutiny to the marriage recognition bans. That standard requires that “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.” Obergefell, 2013 WL 6726688, at * 6 (internal quotations and citations omitted). This Court concluded that Defendants failed to meet its burden to justify “Ohio’s refusal to recognize and give the effect of law to their legal unions.” Id. at *8.12
This Court’s reasoning clearly was not confined to the circumstance of death certificates naming married spouses, the specific issue presented in Obergefell. Instead, this Court more broadly identified the State’s gross intrusion on matters ranging from “finances” to “property” to the “family lives” of married same-sex couples. Id. at *6; see also id. at *6-8. Indeed, the Court expressly emphasized the marriage recognition bans’ unjustified intrusion on parent-child relationships for same-sex couples: “[i]n the family law context, while opposite-sex married
12 Purported governmental interests are discussed in Section. IV.C. below.
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couples can invoke step-parent adoption procedures or adopt children together, same-sex married couples cannot. While Ohio courts allow an individual gay or lesbian person to adopt a child, a same-sex couple cannot.” Id. at 8 (citing Becker Dec., ¶ 17).
2. Defendants Infringe Other Protected Liberty Interests, Including the Right to Parental Autonomy and the Right to Travel
Obergefell’s holding that the marriage recognition bans violate due process applies with even greater force here, given Defendants’ even broader infringements on Plaintiffs’ protected liberty interests. The Constitution accords parents significant rights in the care and control of their children. See Parham v. J.R., 442 U.S. 584, 602 (1979). They have unique rights to make crucial decisions for their children, including about schooling, religion, medical care, and with whom the child may have contact. See, e.g., id. (medical decisions); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (education and religion); Meyer v. Nebraska, 262 U.S. 390 (1923) (education); Troxel v.Granville, 530 U.S. 57 (2000) (visitation with relatives). U.S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances. See id. at 66; Stanley v. Illinois, 405 U.S. 645, 651-52 (1972); see also, e.g., In re D.A.. 113 Ohio St. 3d 88, 90-91, 862 N.E.2d 829 (2007) (citing Ohio cases on parents’ “paramount” right to custody of their children).
Identification on the child’s birth certificate is the basic currency by which parents can freely exercise these protected parental rights and responsibilities. It is also the only common governmently-conferred record that establishes identity, parentage, and citizenship in one document, and that is uniformly recognized, readily accepted, and often required in an array of legal contexts. Obtaining a birth certificate that accurately identifies both parents of a child born using anonymous donor insemination or adopted by those parents is vitally important for
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multiple purposes. The birth certificate can be critical to registering the child in school;13 determining the parents’ (and child’s) right to make medical decisions at critical moments; obtaining a social security card for the child;14 obtaining social security survivor benefits for the child in the event of a parent’s death; establishing a legal parent-child relationship for inheritance purposes in the event of a parent’s death;15 claiming the child as a dependent on the parent’s insurance plan; claiming the child as a dependent for purposes of federal income taxes; and obtaining a passport for the child and traveling internationally.16 The inability to obtain an accurate birth certificate saddles the child with the life-long disability of a government identity document that inaccurately reflects the child’s parentage. It also severely burdens the ability of the child’s parents to exercise their parental rights and responsibilities.
By withholding an accurate birth certificate and preventing Plaintiff families from obtaining appropriate passports for their children, Defendants likewise violate Plaintiffs’ constitutional right to travel. See Saenz v. Roe, 526 U.S. 489, 498 (1999) (“[T]he constitutional right to travel from one State to another is firmly embedded in [Supreme Court] jurisprudence”); Kent v. Dulles, 357 U.S. 116 (1958) (right to travel internationally is protected under the Fifth Amendment). For example, Plaintiffs Joe and Rob routinely engage in international and domestic travel, and they have an international trip planned in May 2014 to attend the wedding
13 See Ohio Rev. Code Ann. § 3313.672(A)(1) (birth certificate generally must be presented at time of initial entry into public or nonpublic school); Enrollment Guidelines, Cincinnati Public Schools, http://www.cpsk12.org/schools/enroll (last visited Feb. 26, 2014). 14 See Social Security Administration, Social Security Numbers for Children, http://www.ssa.gov/pubs/EN-0510023.pdf#nameddest=adoptiveparents (last visited Feb. 26, 2014). 15 See Sefcik v. Mouyos, 171 Ohio App. 3d 14, 18, 869 N.E.2d 105 (Ohio Ct. App. 11th Dist. 2007) (noting that child’s birth certificate is prima facie evidence of parentage for inheritance purposes). 16 See U.S. Department of State, Minors under Age 16, U.S. Passports & Int’l Travel, http://travel.state.gov/passport/get/minors/minors_834.html (last visited Feb. 26 2014); U.S. Department of State, New U.S. Birth Certificate Requirement, U.S. Passports & Int’l Travel, http://travel.state.gov/passport/ passport_5401.html (last visited Feb. 26, 2014) (certified birth certificates listing full names of applicant’s parents must be submitted with passport application as primary evidence of citizenship).
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of a life-long family friend, where their son will be the intended ring-bearer.17 But without a birth certificate accurately recording the names of both adoptive parents and the adoptive name of Adopted Child Doe, the Vitale/Talmas Family is unable to secure a passport for their son and will be unable to attend this event.
B. Defendants Violate Plaintiffs’ Right to Equal Protection 1. Plaintiffs Are Similarly-Situated to Other Couples Whose Marriages and Rights Attendant to Marriage Are Recognized by the State
Obergefell again compels the conclusion that Defendants violate Plaintiffs’ right to equal protection by denying recognition to their marriages and the protections for families attendant to marriage. In Obergefell, this Court noted Ohio’s long history of respecting out-of-state marriages if valid in the place of celebration, with only the marriages of same-sex couples singled out for differential treatment. Obergefell, 2013 WL 6726688, at *12-13.
Under Ohio law, if the Henry/Rogers, Yorksmith, and Noe/McCracken couples’ marriages were accorded respect, both spouses in the couple would be entitled to recognition as the parents of their expected children. As a matter of statute, Ohio respects the parental status of the non-biologically related parent whose spouse uses AI to conceive a child born to the married couple. See O.R.C. § 3111.95 (providing that if “a married woman” uses “non-spousal artificial insemination” to which her spouse consented, the spouse “shall be treated in law and regarded as” the parent of the child, and the sperm donor shall have no parental rights); see also O.R.C. § 3111.03 (providing that a child born to a married couple is presumed the child of the birth mother’s spouse). An Ohio birth certificate is a legal document, not a medical record. Birth certificates for newborn babies are generated by Defendants through use of the Integrated
17See Declaration of Joseph Vitale, Doc. 4-5, ¶¶ 15-16.
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Perinatal Health Information System (IPHIS) with information collected at birth facilities.18
Informants are advised that, “The birth certificate is a document that will be used for important
purposes including proving your child’s age, citizenship and parentage. The birth certificate will
be used by your child throughout his/her life.”19 The Ohio Department of Health routinely issues
birth certificates naming as parents both spouses to opposite-sex married couples who use AI to
conceive their children.20 But Defendants refuse to recognize these Plaintiffs’ marriages and the
parental presumptions that flow from them, and will refuse to issue birth certificates identifying
both women in these couples as parents of their expected children.21
Similarly, when an Ohio-born child is adopted by the decree of a court of a sister state,
the Ohio Department of Health “shall issue . . . a new birth record using the child’s adoptive
name and the names of and data concerning the adoptive parents.” O.R.C. § 3705.12(A)(1)
(emphasis supplied). Yet the Department of Health refuses to comply with this requirement
based on O.R.C. § 3107.18(A), which provides that “[e]xcept when giving effect to such a decree
would violate the public policy of this state, a court decree . . . establishing the relationship by
18 A suggested worksheet is provided to the hospital or other birth facility by the Ohio Department of Health (ODH) for use by the birth mother or other informant. A copy of the worksheet can be found at Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd.aspx?Page=3&TopicRelationID=5&Content=5994 (last visited February 28, 2014). The hospital or birth facility then enters the information gathered into the Integrated Perinatal Health Information System (IPHIS), a database maintained by ODH which collects pregnancy and newborn data. Two flow sheets describing the typical sequence of steps leading to a birth certificate can be found at Birth Facility Easy-Step Guide For IPHIS, pages 4-5, Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd.aspx?Page=3& TopicRelationID=519&Content=4597 (last visited February 28, 2014). 19 Mother’s Worksheet for Child’s Birth, available at Ohio Department of Health, http://vitalsupport.odh.ohio.gov /gd/gd.aspx?Page=3&TopicRelationID=5&Content=5994 (last visited February 28, 2014). 20 See O.R.C. § 3111.03(A)(1) (“[a] man is presumed to be the natural father of a child,” including when “[t]he man and the child’s mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child’s mother separate pursuant to a s eparation agreement.” See also O.R.C. § 3111.95(A) (“If a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and regarded as the natural child of the husband.”), and O.R.C. § 3705.08(B) (“All birth certificates shall include a statement setting forth the names of the child’s parents. . . ”). 21 Defendant Director of the Ohio Department of Health’s Answer to the Plaintiffs’ Complaint, Doc. 15, ¶¶ 59-62.
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adoption, issued pursuant to due process of law by a court of any jurisdiction outside this state . .
. shall be recognized in this state.”
Prior to Governor Kasich’s administration and Defendant Wymyslo’s leadership of the
Department of Health, Ohio recognized out-of-state adoption decrees of same-sex couples and supplied amended birth certificates identifying the adoptive parents.22 But the current
administration takes the position that issuing birth certificates under such circumstances would
violate “public policy,” i.e., Ohio’s purported limitation on adoptions within the State to couples
only if they are married, see O.R.C. § 3107.03(A). If the Vitale/Talmas spouses were an
opposite-sex couple, Defendant Wymyslo would recognize their marriage, their New York
adoption decree, and their right to an accurate birth certificate for Adopted Child Doe.
2. Defendants Discriminate on the Basis of Sexual Orientation, Which, as This Court Held in Obergefell, Is Subject to Review Under Heightened Scrutiny
Defendants thus discriminate against the Plaintiff families based on the sexual orientation
of the lesbian and gay spouses. In Obergefell, this Court held that differential treatment based on
the sexual orientation of the spouses is subject to heightened scrutiny. Obergefell, 2013 WL 6726688, at *18.23 The Court declared that the Sixth Circuit’s prior holdings denying heightened
22 See Decls. of William S. Singer, Jeffrey Scott Seay, and Barbara Ginn, Docs. 4-6 through 4-8. 23 This discrimination is subject to heightened scrutiny on other bases as well. Defendants also discriminate against these families on the basis of the sex of the spouses; if each couple had an opposite-sex partner, Defendants would recognize their marriages and issue the birth certificates sought. This sex-based discrimination is likewise subject to, and fails, heightened scrutiny. See, e.g., United States v. Virginia, 518 U.S. 515, 532-33 (1996); Califano v. Westcott, 443 U.S. 76 (1976). Moreover, singling out same-sex couples to deny their fundamental rights implicates not only the due process guarantee but also the right to equal protection, triggering heightened scrutiny on that basis as well. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Also, as argued in Obergefell, the constitutional marriage recognition ban is subject to heightened scrutiny because it excludes same-sex couples from the normal policital process and makes it uniquely more difficult for them to secure ameliorative legislation on their behalf. See, e.g., Hunter v. Erickson, 393 U.S. 385 (1969); see also Plaintiffs’ Memorandum in Support of Motion for Declaratory Judgment and Permanent Injunction, Doc. 53-1, Page ID 801-802.
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scrutiny based on sexual orientation are no longer sound precedent. Id. at *1324 The Court went
on to analyze the four factors that, to varying degrees, may be considered to determine whether
classifications qualify as suspect or quasi-suspect: whether the class (1) has faced historical
discrimination, (2) has a defining characteristic that bears no relation to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at *14.25 After a thorough
discussion, the Court held that “[s]exual orientation discrimination accordingly fulfills all the
criteria the Supreme Court has identified, and thus Defendants must justify Ohio’s failure to
recognize same-sex marriages in accordance with a heightened scrutiny analysis.” Id. at *18.
The Defendants “utterly failed to do so.” Id. Likewise, they cannot do so in the present case.
3. Defendants Discriminate Against the Children of Same-Sex Spouses Based on Disapproval of the Status or Actions of Their Parents, Yet Another Basis for Heightened Scrutiny
In this case, Defendants’ discriminatory conduct most directly lashes out at the children
of same-sex couples, subjecting these children to harms spared the children of opposite-sex
married parents. Ohio refuses to give legal recognition to both parents of these children, based
on the State’s disapproval of the same-sex relationships of their parents. Defendants withhold
accurate birth certificates from these children, burdening the children because their parents are
not the opposite-sex married couples given the State’s special stamp of approval. The Supreme
Court has long held that disparate treatment of children based on disapproval of their parents’
status or conduct violates the Equal Protection Clause. See, e.g., Plyler v. Doe, 457 U.S. 202,
24 Subsequent to this Court’s Obergefell decision, the Ninth Circuit similarly held that Windsor “requires heightened scrutiny” for classifications based on sexual orientation. Smithkline Beechan Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir. Jan. 21, 2014). “[W]e are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection. . . . Thus, there can no longer be any question that gays and lesbians are no longer a ‘group or class of individuals normally subject to “rational basis” review.’” Id. (citation omitted). 25 Plaintiffs in Obergefell submitted expert declarations, refiled in this case, demonstrating that sexual orientation classifications satisfy the factors considered in analyzing whether discrimination based on a particular trait should be accorded heightened scrutiny. See Declarations of Susan J. Becker, George Chauncey, Megan Fulcher, Joanna L. Grossman, Bernard L. McKay, Letitia Anne Peplau, and Gary M. Segura (See Docs. 17-3 through 17-9).
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220 (1982) (striking down statute prohibiting undocumented immigrant children from attending public schools because it “imposes its discriminatory burden on the basis of a legal characteristic over which the children can have little control”); Mathews v. Lucas, 427 U.S. 495, 505 (1976) (“visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”); Weber v. Aetna Ca. Sur. Co., 406 U.S. 164, 175 (1972) (“imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing”); see also Walton v. Hammons, 192 F.3d 590, 599 (6th Cir. 1999) (holding state could not withhold children’s food stamp support based on their parents’ non-cooperation in establishing paternity of their children). Moreover, such discriminations also trigger heightened scrutiny. See, e.g., Pickett v. Brown, 462 U.S. 1, 8 (1983).
The children in the Plaintiff families should not be denied the right to two legal parents, reflected on their birth certificates and given legal respect, because of the State’s discrimination.
C. As This Court Concluded in Obergefell, the Marriage Recognition Bans Do Not Satisfy Rational Basis Review, Much Less Heightened Scrutiny
This Court considered and rejected as not even legitimate and rational any purported State interests justifying the marriage recognition ban. Obergefell, 2013 WL 6726688, at *2021. The government certainly cannot meet its burden under heightened scrutiny to demonstrate that the marriage recognition bans are necessary to further important State interests. Id. at *6-9. Any purported State interests are as inadequate now as they were several months ago to warrant the discrimination caused by the marriage recognition bans and the bans’ particularly harmful impact on Ohio-born children.
Of particular relevance to this case, in Obergefell this Court analyzed and roundly rejected any claimed government justifications based on a preference for procreation or
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childrearing by heterosexual couples. Id. at *20. Thus, the Defendants cannot claim that denying recognition to Plaintiff couples’ marriages and adoption decrees, denying recognition to the legal parent-child relationships in these families, and withholding accurate birth certificates to their children, advances any legitimate child-related government purpose. This Court rejected as “fundamentally baseless” and “offensive” any suggestion that “adopted children are less emotionally healthy than children raised by birth parents.” Obergfell, 2013 WL 6726688, at *3 n.4. The Court was presented in Obergefell with expert evidence comparing parenting by lesbian and gay couples with that of their heterosexual counterparts.26 This Court decisively concluded that “[t]he overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples.” Id. at *20 n.20 (emphasis in original). The Court noted that the leading mainstream psychological and medical professional organizations “have all released statements in support of gay and lesbian parents and their ability and rights to rear children.” Id.
The Court observed that this overwhelming consensus “has also been recognized by numerous courts.” Id. (citing precedents). Indeed, the U.S. Supreme Court in Windsor, and, most recently, a spate of lower courts around the nation, have similiarly rejected a purported government interest in preferencing or encouraging parenting by heterosexual couples as a justification for denying marital rights to same-sex couples and their families. The Supreme Court in Windsor was offered the same false conjectures about child welfare this Court rejected
26 See Expert Decl. of Megan Fulcher, Obergefell Doc. 43-1, submitted for the Court’s consideration in this case as well.
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in Obergefell — arguments so insubstantial that the Supreme Court found them unnecessary even expressly to acknowledge.27 Instead, the Court concluded:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others [the federal government’s non-recognition of marriages is unconstitutional].
Windsor, 133 S. Ct. at 2696 (emphasis added).
Many lower courts recently have trod the same ground this Court covered in Obergefell,
and have reached the same conclusion that child welfare concerns weigh only in favor of
recognizing the marital rights of same-sex couples. See, e.g., De Leon v. Perry, No. SA-13-CA-
00982-OLG (W.D. Texas Feb. 26, 2014) (declaring unconstitutional Texas bans on same-sex
marriage and out-of-state marriage recognition, and rejecting as irrational purported childrearing
and procreation justifications); Bostic v. Rainey, No. 2:13-cv-395 , 2014 WL 561978, at *18
(E.D. Va. Feb. 13, 2014) (declaring unconstitutional Virginia’s marriage ban, which has effect of
“needlessly stigmatizing and humiliating children who are being raised” by same-sex couples
and “betrays” rather than serves an interest in child welfare); Bourke v. Beshear, No. 3:13-CV-
750-H, 2014 WL 556729, at *8 (W.D. Ky. Feb. 12, 2014) (rejecting purported government
interest in withholding marriage recognition to advance procreation and childrearing goals, and
holding Kentucky’s marriage recognition ban, similar to Ohio’s, unconstitutional); Bishop v.
United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013, at *28–33 (N.D.
27 See Brief on the Merits for the Respondent Bipartison Legal Advisory Group of the U.S. House of Representatives in United States v. Windsor, 2013 WL 267026, at *47-49 (arguing, inter alia, that governmental preference that child be reared by child’s biological mother and father justifies discrimimination against married same-sex couples).
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Okla. Jan. 14, 2014) (rejecting purported government interests in responsible procreation and childrearing as justifications for Oklahoma’s same-sex marriage ban, which was held unconstitutional); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *25–27 (D. Utah Dec. 20, 2013) (declaring Utah’s marriage ban unconstitutional and finding that same-sex couples’ “children are also worthy of the State’s protection, yet” the marriage ban “harms them for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples”); Griego v. Oliver, No. 34,306, 2013 WL 6670704, at *3 (N.M. Dec. 19, 2013) (rejecting “responsible procreation and childrearing” rationales to justify New Mexico’s marriage ban, and declaring ban in violation of state constitution).
In sum, under Supreme Court jurisprudence, and as confirmed in numerous recent lower court decisions, states do not have governmental interests sufficient to justify their refusals to celebrate or recognize marriages between same-sex couples. Defendants have already been found in Obergefell to lack even a rational basis for refusing to recognize marriages between same-sex couples, including on vital records. Just as Defendants lack a rationale at death, they lack a rationale at birth. Indeed, there are no circumstances in which the State’s marriage recognition bans are constitutional. At both ends of the lifespan, a marriage between same-sex couples that is valid where celebrated must be recognized by Ohio and acknowledged in the State’s vital records. The State’s marriage recognition bans and non-recognition of marital presumptions of parentage violate the substantive due process and equal protection rights of same-sex couples and their children.
D. The Full Faith and Credit Clause of the U.S. Constitution Compels Ohio to Recognize and Give Effect to the Judicial Decrees of Adoption from Other States, Including for Purposes of Issuing an Amended Birth Certificate Identifying a Same-Sex Couple as an Ohio-Born Child’s Adoptive Parents
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Plaintiffs Vitale/Talmas Family and Adoption S.T.A.R. are also entitled to prevail on their Full Faith and Credit Clause claim. Article IV, § 1 of the U.S. Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In incorporating this clause into our Constitution, the framers “foresaw that there would be a perpetual change and interchange of citizens between the several states.” McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312, 315 (1839). The Supreme Court has explained that the “animating purpose” of the full faith and credit command is:
to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1988) (quoting Milwaukee Cnty v. M.E., White Co., 296 U.S. 268, 277 (1935)). In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction. Baker, 522 U.S. at 233. Proper full faith and credit analysis distinguishes between public acts, which may be subject to public policy exceptions to full faith and credit, and judicial proceedings, which decidedly are not subject to any public policy exception to the mandate of full faith and credit. See Baker, 522 U.S. at 232 (“Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.”); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943) (“The full faith and credit clause and the Act of Congress implementing it have, for most purposes, placed a judgment on a different footing from a statute of one state, judicial recognition of which is sought in another.”).
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The Supreme Court has thus rejected any notion that a state may disregard the full faith and credit obligation simply because the state finds the policy behind the out-of-state judgment contrary to is own public policies. According to the Court, “our decisions support no roving ‘public policy exception’ to the full faith and credit due judgments.” Baker, 522 U.S. at 233 (emphasis added). See also Estin v. Estin, 334 U.S. 541, 546 (1948) (Full Faith and Credit Clause “ordered submission . . . even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it.”); Williams v. North Carolina, 317 U.S. 287 (1942) (requiring North Carolina to recognize change in marital status effected by Nevada divorce decree contrary to laws of North Carolina).
Consistent with the guarantee of full faith and credit, Defendant Wymyslo’s Department of Health is mandated under a provision of the Vital Statistics section of the Ohio Code to issue an amended birth certificate upon receipt of an adoption decree issued by the court of another state. Pursuant to O.R.C. § 3705.12(A) and (B), upon receipt of a decree of adoption of an Ohioborn child, issued with due process by the court of another state, “the department of health shall issue, unless otherwise requested by the adoptive parents, a new birth record using the child’s adopted name and the names of and data concerning the adoptive parents . . . .” (Emphasis added.)
This statute does not leave discretion in Defendant Wymyslo’s hands to reject duly issued out-of-state adoption decrees based on whether the adoption could have been obtained under Ohio law. Indeed, prior to the tenure of Defendant Wymyslo, Ohio issued amended birth certificates based on the out-of-state adoption decrees of same-sex parents, notwithstanding
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Ohio’s purported policy against adoptions by unmarried couples within the State.28 Only now, under Defendant Wymyslo, does the Department of Health taken the position that O.R.C. § 3107.18, a separate provision of the “Adoption” section of the Code, frees it of its obligation to issue a corrected birth certificate upon receipt of a sister state’s duly issued judgment of adoption decreeing a same-sex couple as adoptive parents.29 According to Defendant Wymyslo, that provision requires the Department of Health to refuse recognition to out-of-state adoption decrees of same-sex parents, whose marriages are disrespected under Ohio law, because “giving effect to such a decree would violate the public policy of this state.” O.R.C. § 3107.18. This backward evolution in Ohio — from granting accurate birth certificates to adoptive same-sex parents and their children, to the current administration’s refusal to do so — is yet another manifestation of the irrational animus motivating Defendants’ discriminatory treatment of lesbian and gay families.
Section 3107.18’s “public policy” exception may authorize refusing comity, or recognition, to an adoption decree entered in a foreign nation, which is not governed by the Full Faith and Credit Clause. See State ex rel. Smith v. Smith, 662 N.E.2d 366 (Ohio 1996) (Ohio may deny comity to South African adoption decree entered without notice to biological father, which would have violated federal constitutional due process requirements in this country). But its application to the adoption decree of a sister state, where full faith and credit governs, is contrary to Ohio’s consistent recognition of the duly-issued adoption decrees of sister state courts of competent jurisdiction. See, e.g., Matter of Bosworth, No. 86-AP-903, 1987 WL 14234, at *2 (Ohio Ct. App. 10th Dist. July 16, 1987) (recognizing Florida adoption decree because, “if due process was followed by another state’s court in issuing an adoption decree, an
28 See Decls. of William S. Singer, Jeffrey Scott Seay, and Barbara Ginn, Docs. 4-6 through 4-8. 29 See Letter from Ohio Department of Health attached to Declaration of Barbara Ginn, Doc. 4-6, Page ID 73-74.
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Ohio court is mandated to give full faith and credit to that state’s decree”); Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct. App. 5th Dist. May 3, 1991) (recognizing New York adoption decree over objection of Ohio biological parents).
Defendant Wymyslo impermissibly injects a “roving ‘public policy exception’ to the full faith and credit due judgments,” precisely what the Supreme Court has made clear the Full Faith and Credit Clause prohibits. In a very similar case, Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), the Tenth Circuit held that Oklahoma was required to issue an amended birth certificate listing as parents both members of a California same-sex couple that had legally adopted a child born in Oklahoma, notwithstanding Oklahoma’s prohibition against such adoptions within the state. Id. at 1141-42. The Tenth Circuit granted this relief in an action, similar to the claim here, brought under 42 U.S.C. § 1983. Oklahoma, like Ohio, had a statute providing for issuance of amended birth certificates for children adopted in other states’ courts. The Tenth Circuit ruled that the Full Faith and Credit Clause required Oklahoma “to apply its own law to enforce [those] adoption order[s] in an ‘even-handed’ manner.” Id. at 1154 (citing Baker, 522 U.S. at 235). The Tenth Circuit concluded, “We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause.” Id. at 1156. Oklahoma’s “refusal to recognize final adoption orders of other states that permit adoption by same-sex couples” was therefore “unconstitutional.” Id.30 The same principles should apply here to prohibit Defendant Wymyslo’s harsh treatment of Ohio-born children adopted in other states by same-sex parents.
30 The Fifth Circuit, in Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), did not require Louisiana to issue a birth certificate consistent with a New York adoption order. That case is dintinguishable. It pre-dates Windsor, and the plaintiffs in that case were an unmarried same-sex couple. Moreover the Louisiana statutory scheme for addressing foreign orders was different from that in Ohio. In any event, Adar did not adequately recognize the equal protection rights of the plaintiffs or the proper scope of the Full Faith and Credit Clause. The Tenth Circuit’s reasoning in Finstuen should guide this Court.
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V. PLAINTIFFS SUFFER IRREPARABLE HARM FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW AND NEED THE CERTAINTY OF INJUNCTIVE AND DECLARATORY RELIEF REGARDING THE RECOGNITION DUE THEIR MARRIAGES AND PARENTAL STATUSES
Plaintiffs suffer irreparable harm from Defendants’ violation of their rights to due process, equal protection, and full faith and credit for their adoption decrees. Birth certificates are vitally important documents. Ohio’s refusal to issue accurate birth certificates to the Plaintiffs imposes numerous indignities, legal disabilities, and psychological harm. See Section IV.A.2., above. Further, the State violates the Plaintiffs’ fundamental constitutional rights to remain married, to function as a family, and to travel. How could it ever serve as a proper governmental purpose, with respect to these Plaintiffs who are caring for children, to block them when they step up and formally acknowledge their role as parents? When they willingly submit to the criminal, civil, and administrative control of the State with respect to their care of a child? And when they say to the community, “hold me legally responsible for the care and welfare of this child”? Ohio’s refusal to recognize Plaintiffs’ marriages and adoption decrees serves only the “improper purpose” to “impose inequality” and “make gay citizens unequal under the law.” Obergefell, 2013 WL 6726688, at *21 (internal quotations and citation omitted).
These violations, disabilities, and indignities all constitute irreparable harm. “Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied.” Id. at *22; see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”); Saenz, 526 U.S. at 498 (violation of right to travel interstate constitutes irreparable injury).
Without a permanent injunction and declaratory relief, Plaintiffs and their children must navigate life without the birth certificates that pave the way through numerous transactions large
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and small. They will needlessly suffer harmful delays, bureaucratic complications, increased costs, embarrassment, invasions of privacy, and disrespect. The legal parental status of these children’s parents will be open to question, including in moments of crisis when time and energy cannot be spared to overcome the extra hurdles Ohio’s discrimination erects.31 The marital status of the couples will likewise be open to question, depriving these families of the farreaching security, protections, and dignity that come with recognition of their marriages. The Plaintiff families require injunctive and declaratory relief to lift the stigma imposed by Defendants’ disrespect for their spousal and parental statuses.
Imposition of these burdens on Plaintiffs serves no legitimate public interest that could counter-balance the severe and irreparable harm to Plaintiffs from the marriage recognition bans and deprivation of birth certificates reflecting their legal parent-child relationships. Plaintiffs thus demonstrate entitlement to a permanent injunction and declaratory judgment.
VI. CONCLUSION
This Court should issue a declaration that 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 the jurisdiction of celebration, violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriage recognized and accepted as legal in Ohio and to enjoy the rights, protections and benefits of marriage provided to opposite-sex married
31 For example, although Ohio same-sex couples may obtain co-custody agreements for their children, such an agreement “does not . . . create the full rights and responsibilities of a legally recognized child-parent relationship.” (Becker Declaration, Doc. 17-3, ¶ 19). Families can be barred in hospitals from their loved ones’ bedsides due to a lack of legally-recognized relationship status. (Id. at ¶ 23). “Same-sex married couples and their children live in the Ohio that automatically denies most state and federal rights, benefits and privileges to them.” (Id. at ¶ 103). Children are entitled to bring wrongful death actions. (McKay Declaration, Doc. 17-7, ¶ 37). Inheritance is governed in part by parentage. (Id. at ¶¶ 21, 24, 30).
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couples under Ohio law, are denied their fundamental right to marriage recognition without due process of law and their right to equal protection.
This Court should further issue a permanent injunction prohibiting the Defendants and their officers and agents from (a) enforcing the marriage recognition bans, (b) denying same-sex couples validly married in the jurisdiction of celebration all the rights, protections, and benefits of marriage provided under Ohio law, and (c) denying full faith and credit to decrees of adoption duly obtained by same-sex couples in sister jurisdictions.
Finally, the injunctive relief should include but not be limited to requiring Defendants to complete birth certificates as the need arises for the Plaintiffs in a manner consistent with the attached proposed order.
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
Ellen Essig 105 East Fourth Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com Attorneys 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 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Fax: 513. 345-5543 agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs
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Susan L. Sommer M. Currey Cook Lambda Legal Defense & Education Fund, Inc. 120 Wall Street, 19th Floor New York, New York 10005 Phone: 212.809.8585 Fax: 212.809.0055 ssommer@lambdalegal.org ccook@lambdalegal.org Attorneys for Plaintiffs admitted Pro Hac Vice
Paul D. Castillo #0081813 Lambda Legal Defense & Education Fund, Inc. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219 Phone: 214.219.8585 Fax: 214.219.4455 Pcastillo@lambdalegal.org Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2014, a copy of the foregoing pleading was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has entered an
appearance by operation of the Court’s electronic filing system. Parties may access this filing
through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice
of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has
not yet entered an appearance electronically.
/s/Alphonse A Gerhardstein Trial Attorney for Plaintiffs
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Case: 1:14-cv-00129-TSB Doc #: 18-2 Filed: 02/28/14 Page: 1 of 3 PAGEID #: 600

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRITTANI HENRY and BRITTNI ROGERS, et al.,
Plaintiffs,
vs.
THEODORE E. WYMYSLO, M.D., et al.,
Defendants.

:

:

:

:

Case No. 1:14-cv-129

:

:

Judge Timothy S. Black

:

:

PROPOSED

:

DECLARATORY JUDGMENT

:

AND PERMANENT

:

INJUNCTION ORDER

Upon consideration of the Plaintiffs’ motion and memorandum in support of declaratory

and injunctive relief, the responses of the Defendants, the Plaintiffs’ Reply, and the exhibits and

declarations submitted by the parties, this Court has found and concluded that Plaintiffs’ motion

is appropriately granted. Consequently, the Court now enters its final judgment granting a

declaratory judgment and a permanent injunction.

Specifically with respect to plaintiffs’ claim for marriage recognition, the Court finds,

that those portions of Ohio Const. Art. XV, §11 and Ohio Rev. Code § 3101.01(C), and any

other provisions of the Ohio Revised Code including but not limited to Ohio Rev. Code §

3107.18(A) that may be relied on to deny legal recognition to the marriages of same-sex couples

validly entered in the jurisdiction of celebration (collectively the “marriage recognition bans”),

violate rights secured by the Fourteenth Amendment to the United States Constitution in that

same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have

their out-of-state marriage recognized and accepted as legal in Ohio and to enjoy the rights,

protections and benefits of marriage provided to opposite-sex married couples under Ohio law,

are denied their fundamental right to marriage recognition without due process of law and their

Case: 1:14-cv-00129-TSB Doc #: 18-2 Filed: 02/28/14 Page: 2 of 3 PAGEID #: 601
right to equal protection 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 the Ohio marriage recognition bans are unconstitutional and the marriages of same-sex couples validly entered in the jurisdiction of celebration are entitled to full legal recognition in the State of Ohio. This includes, but is not limited to, (a) application of marital presumptions of parentage under which both spouses have the status of legal parent to a child conceived using AI and/or born to the marriage, and (b) granting same-sex married couples the same rights as opposite-sex married couples with respect to enforcement of adoption decrees from sister jurisdictions, and (c) issuing birth certificates for children of married same-sex couples that include both same-sex parents on the same basis that birth certificates of children of married opposite sex couples include both parents.
The Court further DECLARES that the Ohio marriage recognition bans violate the constitutional rights of same-sex couples with marriages validly entered in the jurisdiction of celebration who become clients of Plaintiff Adoption S.T.A.R. and/or who secure adoption orders for children born in Ohio and who seek birth certificates that record both persons in the marriage as the legal parents.
This Court further DECLARES that Defendants shall recognize and grant full faith and credit to decrees of adoption duly obtained by same-sex couples in sister jurisdictions;
This Court further DECLARES that Plaintiff Adoption S.T.A.R. and same-sex couples with marriages validly entered in the jurisdiction of celebration may, consistent with the Constitution of the United States and this Court’s Final Order, enforce existing decrees of
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adoption, and request and obtain birth certificates listing two adoptive parents of the same-sex from the Ohio Department of Health on the same basis and subject to the same criteria as married opposite–sex couples.
THEREFORE, Defendants Theodore Wymyslo and Camille Jones, and their officers, agents, and employees, and those persons (including all state and local officials) in active concert or participation with Defendants who receive actual notice of this Order, are also PERMANENTLY ENJOINED from enforcing the Ohio marriage recognition bans, those portions of Ohio Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C), and any other provisions of the Ohio Revised Code including but not limited to Ohio Rev. Code § 3107.18(A) that may be relied on to deny legal recognition of same-sex marriages validly entered in the jurisdiction of celebration and from denying full faith and credit to decrees of adoption duly obtained by same-sex couples in sister jurisdictions. Compliance by Defendants with this order shall include but not be limited to, issuing birth certificates to the plaintiffs in this case listing both of their same-sex parents. Defendants shall also issue directives or notices as appropriate to all state and local officials involved in matters that relate to or require a determination regarding marriage recognition informing them of the contents of this order and providing instructions on compliance.
IT IS SO ORDERED. Date: ________________
_______________________________ Timothy S. Black United States District Judge
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 Case: 1:14-cv-00129-TSB Doc #: 28 Filed: 04/14/14 Page: 1 of 45 PAGEID #: 814

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF OHIO (W.D.)

BRITTANI HENRY, et al., Plaintiffs, vs.
LANCE HIMES, et al., Defendants.

:

Case No. 1:14-cv-129

:

Judge Timothy S. Black

:

:

:

ORDER GRANTING PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

On December 23, 2013, this Court ruled in no uncertain terms that:

“Article 15, Section 11, of the Ohio Constitution, and Ohio Revised Code Section 3101.01(C) [Ohio’s “marriage recognition bans”], violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriage recognized and accepted as legal in Ohio, are denied their fundamental right to marriage recognition without due process of law; and are denied their fundamental right to equal protection of the laws when Ohio does recognize comparable heterosexual marriages from other jurisdictions, even if obtained to circumvent Ohio law.”

Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997 (S.D. Ohio 2013).

The Obergefell ruling was constrained by the limited relief requested by the

Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and

it directly compels the Court’s conclusion today. The record before the Court, which

includes the judicially-noticed record in Obergefell, is staggeringly devoid of any

legitimate justification for the State’s ongoing arbitrary discrimination on the basis of

sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.1

1 The Court’s Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages lawfully performed in states which do authorize such marriages.
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It is this Court’s responsibility to give meaning and effect to the guarantees of the
federal constitution for all American citizens, and that responsibility is never more
pressing than when the fundamental rights of some minority of citizens are impacted by
the legislative power of the majority. As the Supreme Court explained over 70 years ago:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied).
This principle is embodied by the Court’s decision today and by the ten out of ten
federal rulings since the Supreme Court’s holding in United States v. Windsor — all
declaring unconstitutional and enjoining similar bans in states across the country.2
2 See, e.g., Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013) (permanently enjoining Utah anti-celebration provisions on due process and equal protection grounds); Obergefell, 962 F. Supp.2d at 997-98 (permanently enjoining as to plaintiffs enforcement of Ohio anti-recognition provisions on due process and equal protection grounds); Bishop v. United States ex rel. Holder, 2014 WL 116013, at *33-34 (N.D. Okla. Jan. 14, 2014) (permanently enjoining Oklahoma’s anti-celebration provisions on equal protection grounds); Bourke v. Beshear, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014) (declaring Kentucky’s antirecognition provisions unconstitutional on equal protection grounds); Bostic v. Rainey, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014) (finding Virginia’s anti-celebration and anti-recognition laws unconstitutional on due process and equal protection grounds, and preliminarily enjoining enforcement); Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on equal protection grounds); De Leon v. Perry, 2014 WL 715741, at *1, 24 (W.D. Tex. Feb. 26, 2014) (preliminarily enjoining Texas anti-celebration and anti-recognition provisions on equal protection and due process grounds); Tanco v. Haslam, 2014 WL 997525, at *6, 9 (M.D. Tenn. Mar. 14, 2014) (enjoining enforcement of Tennessee anti-recognition provisions on equal protection grounds); DeBoer v. Snyder, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigan anti-celebration provisions on equal protection grounds); Baskin v. Bogan (S.D. Ind. April 10, 2014 (J. Young) (temporarily enjoining Indiana’s marriage recognition ban).
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The pressing and clear nature of the ongoing constitutional violations embodied by these kinds of state laws is evidenced by the fact the Attorney General of the United States and eight state attorneys general have refused to defend provisions similar to Ohio’s marriage recognition bans. (Doc. 25 at 2).
This civil action is now before the Court on Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction (Doc. 18) and the parties’ responsive memoranda. (Docs. 20 and 25). Plaintiffs include four same-sex couples married in jurisdictions that provide for such marriages, including three female couples who are expecting children conceived via anonymous donors within the next few months and one male couple with an Ohio-born adopted son. All four couples are seeking to have the names of both parents recorded on their children’s Ohio birth certificates. More specifically, Plaintiffs seek a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional, a permanent injunction prohibiting Defendants and their officers and agents from enforcing those bans or denying full faith and credit to decrees of adoption duly obtained by same-sex couples in other jurisdictions, and the issuance of birth certificates for the Plaintiffs’ children listing both same-sex parents. (Doc. 18 at 1-2).
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I. ESTABLISHED FACTS A. Marriage Law in Ohio3
The general rule in the United States for interstate marriage recognition is the “place of celebration rule,” or lex loci contractus, which provides that marriages valid where celebrated are valid everywhere. Historically, Ohio has recognized marriages that would be invalid if performed in Ohio, but are valid in the jurisdiction where celebrated. This is true even when such marriages clearly violate Ohio law and are entered into outside of Ohio with the purpose of evading Ohio law with respect to marriage. Ohio departed from this tradition in 2004 to adopt its marriage recognition ban. Prior to 2004, the Ohio legislature had never passed a law denying recognition to a specific type of marriage solemnized outside of the state.
Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex marriages in the state and to prohibit recognition of same-sex marriages from other states. Sub-section (C) provides the following:
(1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state. (2) Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.
3 See Obergefell, 962 F. Supp. 2d at 974-75. 4

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(3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code, that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio . . . (4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes 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. Ohio Rev. Code Ann. § 3101.01. Also adopted in 2004 was an amendment to the Ohio Constitution, which 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. Ohio Const. art. XV, § 11.
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B. Plaintiffs 1. Henry/Rogers Family4 Plaintiffs Brittani Henry and Brittni Rogers met in 2008. They have been in a
loving, committed same-sex relationship since that time. On January 17, 2014, they were validly married in the state of New York, which state legally recognizes their marriage. Having established a home together and enjoying the support of their families, the couple decided they wanted to have children. Henry became pregnant through artificial insemination (“AI”), and she is due to deliver a baby boy in June 2014. The sperm donor is anonymous. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son’s parent on his birth certificate.
2. Yorksmith Family5 Nicole and Pam Yorksmith met and fell in love in 2006. They were married on October 14, 2008 in California, which state legally recognizes their marriage. The Yorksmith family already includes a three-year-old son born in Cincinnati in 2010. He was conceived through AI using an anonymous sperm donor. Nicole is their son’s birth mother, but Pam was fully engaged in the AI process, pregnancy, and birth. They share the ongoing role as parents. However, only Nicole is listed on their son’s birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI.
4 See Doc. 4-2. 5 See Doc. 4-3.
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Failing to have both parents listed on their son’s birth certificate has caused the Yorksmith Family great concern. They have created documents attempting to ensure that Pam will be recognized with authority to approve medical care, deal with childcare workers and teachers, travel alone with their son, and otherwise address all the issues parents must resolve. Nicole and Pam allege that Defendants’ denial of recognition of Pam’s role as parent to their child is degrading and humiliating for the family.
Now Nicole is pregnant with their second child. She expects to give birth in June in Cincinnati. Nicole and Pam are married and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the California marriage and both married spouses on the birth certificate of the Yorksmiths’ baby boy. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son’s parent on his birth certificate.
3. Noe/McCracken Family6 Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed same-sex relationship since 2009. From the beginning of their time together, they agreed that they would have children. They were married in 2011 in the state of Massachusetts, which legally recognizes their marriage. Noe became pregnant through AI using an anonymous sperm donor. She expects to deliver a baby in a Cincinnati hospital in June 2014. McCracken consented to and was a full participant in the decision to build their family using AI. Noe and McCracken are married now and will continue to be a married 6 See Doc. 4-4.
7

Case: 1:14-cv-00129-TSB Doc #: 28 Filed: 04/14/14 Page: 8 of 45 PAGEID #: 821
couple when their child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the Massachusetts marriage and the marital presumption of parentage that should apply to this family for purposes of naming both parents on the baby’s birth certificate. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as a parent on the baby’s birth certificate when the child is born.
4. Vitale/Talmas Family7 Plaintiffs Joseph J. Vitale and Robert Talmas met in 1997. They live in New York City, where they work as corporate executives. Vitale and Talmas married on September 20, 2011 in New York, which state legally recognizes their marriage. The couple commenced work with Plaintiff Adoption S.T.A.R. to start a family through adoption. Adopted Child Doe was born in Ohio in 2013 and custody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Vitale and Talmas immediately assumed physical custody and welcomed their son into their home. On January 17, 2014, an Order of Adoption of Adopted Child Doe was duly issued by the Surrogate’s Court of the State of New York, County of New York, naming both Vitale and Talmas as full legal parents of Adopted Child Doe. Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe’s adoptive name and naming Vitale and Talmas as his adoptive parents. Based on the experience of Plaintiff Adoption S.T.A.R. with other clients and their direct communications with Defendant Himes’s staff 7 See Doc. 4-5.
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at the Ohio Department of Health, Adopted Child Doe will be denied a birth certificate that lists both men as parents. On the other hand, heterosexual couples married in New York who secure an order of adoption from a New York court regarding a child born in Ohio have the child’s adoptive name placed on his or her birth certificate along with the names of both spouses as the parents of the adoptive child as a matter of course.
Without action by this Court, Defendant Himes will allow only one of these Plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Vitale and Talmas object to being forced to choose which one of them to be recognized as their son’s parent and to allowing this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life-long risks and harms they allege are attendant to having only one of his parents listed on his birth certificate.
5. Adoption S.T.A.R.8 Plaintiffs allege that prior to Governor Kasich, Attorney General DeWine, and prior-Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health provided same-sex married couples such as Plaintiffs Vitale and Talmas with birth certificates for their adopted children, consistent with those requested in the Complaint. (Doc. 1). Defendant Himes has changed that practice, and now denies married same-sex couples with out-of-state adoption decrees amended birth certificates for their Ohio-born children naming both adoptive parents. (See Docs. 4-6, 4-7, and 4-8). As a result of Ohio’s practice of not amending birth certificates for the adopted children of married same-sex parents, Plaintiff Adoption S.T.A.R. alleges it has been 8 See Doc. 4-6.
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forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an accurate amended birth certificate for adopted children born in Ohio. Adoption S.T.A.R. alleges it has expended unbudgeted time and money to change its agreements and advise same-sex adoptive parents of Ohio’s discriminatory practice. It alleges it has devoted extra time and money to cases like that of Plaintiffs Vitale and Talmas involving same-sex married couples who adopt children born in Ohio through court actions in other states. Adoption S.T.A.R. alleges that the process to seek an accurate birth certificate for Adopted Child Doe – including participation in this lawsuit – is expected to be a protracted effort that will cause the expenditure of extra time and money.
Adoption S.T.A.R. has served same-sex married couples in previous adoption cases and is currently serving other same-sex married couples in various stages of the adoption process in other states for children born in Ohio. Adoption S.T.A.R. alleges it will serve additional same-sex married couples in this capacity in the future. Adoption S.T.A.R. alleges that its clients’ inability to secure amended birth certificates from Defendant Himes accurately listing both same-sex married persons as the legal parents of their adopted children imposes a significant burden on the agency’s ability to provide adequate and equitable adoption services to its clients, results in incomplete adoptions and loss of revenue, and frustrates the very purpose of providing adoption services to its clients in the first place.
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II. STANDARD OF REVIEW Plaintiffs go beyond the as-applied challenge pursued in Obergefell and now seek a declaration that Ohio’s marriage recognition ban is facially unconstitutional, invalid, and unenforceable. (Doc. 18 at 15). In other words, Plaintiffs allege that “no set of circumstances exists under which the [challenged marriage recognition ban] would be valid,” and the ban should therefore be struck down in its entirety. United States v. Salerno, 481 U.S. 739, 745 (1987); see also De Leon v. Perry, SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (declaring that Texas’s ban on same-sex marriages and marriage recognition “fails the constitutional facial challenge because… Defendants have failed to provide any – and the Court finds no – rational basis that banning same-sex marriage furthers a legitimate governmental interest”). “A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir. 2012); Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)); Obergefell, 962 F. Supp. 2d at 977. It lies within the sound discretion of the district court to grant or deny a motion for permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Obergefell, 962 F. Supp. 2d at 977 (citing Kallstrom, 136 F.3d at 1067); Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994). The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, “[t]he
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two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)); see also Obergefell, 962 F. Supp. 2d at 977. Both circumstances arise here.
III. ANALYSIS This Court has already held in Obergefell that Ohio’s refusal to recognize the outof-state marriages of same-sex couples violates the Fourteenth Amendment due process “right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.” 962 F. Supp. 2d at 978. In the birth certificate context, much like in the death certificate context, the marriage recognition ban denies same-sex married couples the “attendant benefits and protections” associated with state marriage recognition and documentation. This Court further held in Obergefell that the marriage recognition ban “violate[s] Plaintiffs’ constitutional rights by denying them equal protection of the laws.” Id. at 983. Finally, this Court declared the marriage recognition ban unconstitutional and unenforceable in the death certificate context. The Court’s analysis in Obergefell controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.
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A. Facial Challenge Despite the limited relief pursued by the Plaintiffs in that case, this Court’s
conclusion in Obergefell clearly and intentionally expressed the facial invalidity of Ohio’s marriage recognition ban, not only as applied to the Plaintiffs and the issue of death certificates, but in any application to any married same-sex couple. 962 F. Supp. 2d at 997. Ohio’s marriage recognition ban embodies an unequivocal, purposeful, and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties. This classification, relegating lesbian and gay married couples to a second-class status in which only their marriages are deemed void in Ohio, is the core constitutional violation all of the Plaintiffs challenge.
The United States Constitution “neither knows nor tolerates classes among citizens.” Romer v. Evans, 517 U.S. 620, 623 (1996) (emphasis supplied). There can be no circumstance under which this discriminatory classification is constitutional, as it was intended to, and on its face does, stigmatize and disadvantage same-sex couples and their families, denying only to them protected rights to recognition of their marriages and violating the guarantee of equal protection. Indeed, this Court already held as much in Obergefell, finding that Ohio enacted the marriage recognition bans with discriminatory animus and without a single legitimate justification. 962 F. Supp. 2d at 995.
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As noted, following the Supreme Court’s ruling in Windsor v. United States, 133 S. Ct. 2675 (2013), a spate of federal courts from across the nation has issued rulings similar to Obergefell, holding that a state’s ban on the right of same-sex couples to marry or to have their out-of-state marriages recognized violates the constitutional due process and equal protection rights of these families. There is a growing national judicial consensus that state marriage laws treating heterosexual and same-sex couples differently violate the Fourteenth Amendment, and it is this Court’s responsibility to act decisively to protect rights secured by the United States Constitution.
The Supreme Court explained in Citizens United v. Federal Election Commission that “the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” 558 U.S. 310, 331 (2010). The distinction between the two “goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Id. Even in a case explicitly framed only as an as-applied challenge (which this case is not), the Court has authority to facially invalidate a challenged law. “‘[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases.’” Id. at 331 (quoting Richard H. Fallon, Jr., As-Applied and Facial Challenges and ThirdParty Standing, 113 HARV. L. REV. 1321, 1339 (2000)).
It is therefore well within the Court’s discretion to find the marriage ban facially unconstitutional and unenforceable in all circumstances on the record before it, and given the Court’s extensive and comprehensive analysis in Obergefell pointing to the
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appropriateness of just such a conclusion, Defendants have been on notice of the likely
facial unconstitutionality of the marriage ban since before this case was ever filed.
B. Due Process Clause
The Due Process Clause of the Fourteenth Amendment establishes that no state
may “deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Due Process Clause protects “vital personal rights essential
to the orderly pursuit of happiness by free men,” more commonly referred to as
“fundamental rights.” Loving v. Virginia, 388 U.S. 1, 12 (1967). There are a number of
fundamental rights and/or liberty interests protected by the Due Process clause that are
implicated by the marriage recognition ban, including the right to marry, the right to remain married,9 and the right to parental autonomy.
1. Right to Marry
“The freedom to marry has long been recognized” as a fundamental right protected by the Due Process Clause. Loving, 388 U.S. at 12 (1967).10 Some courts have not
found that a right to same-sex marriage is implicated in the fundamental right to marry.
9 The concept of the right to remain married as a liberty interest protected by the Due Process Clause is advanced by Professor Steve Sanders in his article The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). 10 See also Turner v. Safley, 482 U.S. 78, 95 (1987) (“The decision to marry is a fundamental right”); Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition”); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965) (intrusions into the “sacred precincts of marital bedrooms” offend rights “older than the Bill of Rights”); id. at 495-496 (Goldberg, J., concurring) (the law in question “disrupt[ed] the traditional relation of the family – a relation as old and as fundamental as our entire civilization”); see generally Washington v. Glucksberg, 521 U.S. 702, 727 n.19 (1997) (citing cases).
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See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1094-98 (D. Haw. 2012).11 However, neither the Sixth Circuit nor the Supreme Court have spoken on the issue, and this Court finds no reasonable basis on which to exclude gay men, lesbians, and others who wish to enter into same-sex marriages from this culturally foundational institution.
First, while states have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual. Accordingly, “the regulation
of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.” Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (emphasis supplied); see also Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”); Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse …”).
The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of 11 See also Wilson v. Ake, 354 F. Supp. 2d 1298, 1306-07 (M.D. Fla. 2005) (“No federal court has recognized that [due process] . . . includes the right to marry a person of the same sex”) (internal citation omitted); Conaway v. Deane, 932 A.2d 571, 628 (Md. App. 2007) (“[V]irtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole”); Hernandez v. Robles, 885 N.E.2d 1, 9 (N.Y. 2006) (“The right to marry is unquestionably a fundamental right . . . The right to marry someone of the same sex, however, is not “deeply rooted,” it has not even been asserted until relatively recent times”).
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characteristics, the Court consistently describes a general “fundamental right to marry” rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978); accord In re Marriage Cases, 183 P.3d 384, 421 n.33 (Cal. 2008) (Turner “did not characterize the constitutional right at issue as ‘the right to inmate marriage’”).
In Lawrence v. Texas, 549 U.S. 558 (2003), the Supreme Court held that the right of consenting adults (including same-sex couples) to engage in private, sexual intimacy is protected by the Fourteenth Amendment’s protection of liberty, notwithstanding the historical existence of sodomy laws and their use against gay people. For the same reasons, the fundamental right to marry is “deeply rooted in this Nation’s history and tradition” for purposes of constitutional protection even though same-sex couples have not historically been allowed to exercise that right. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Id. at 572 (citation omitted). While courts use history and tradition to identify the interests that due process protects, they do not carry forward historical limitations, either traditional or arising by operation of prior law, on which Americans may exercise a right, once that right is recognized as one that due process protects.
“Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.” In re Marriage Cases, 183 P.3d at 430 (quotation omitted). For example, when the Supreme Court held
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that anti-miscegenation laws violated the fundamental right to marry in Loving, it did so despite a long tradition of excluding interracial couples from marriage. Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving …”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack”) (citation omitted). Indeed, the fact that a form of discrimination has been “traditional” is a reason to be more skeptical of its rationality and cause for courts to be especially vigilant.
Cases subsequent to Loving have similarly confirmed that the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (states may not require indigent individuals to pay court fees in order to obtain a divorce, since doing so unduly burdened their fundamental right to marry again); see also Zablocki, 434 U.S. at 388-90 (state may not condition ability to marry on fulfillment of existing child support obligations). Similarly, the right to marry as traditionally understood in this country did not extend to people in prison. See Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79 (1985). Nevertheless, in Turner, 482 U.S. at 95-97, the Supreme Court held that a state cannot restrict a prisoner’s ability to marry without sufficient justification. When analyzing other fundamental rights and liberty interests in other contexts, the
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Supreme Court has consistently adhered to the principle that a fundamental right, once recognized, properly belongs to everyone.12
Consequently, based on the foregoing, the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans.
2. Right of Marriage Recognition Defendants also violate the married Plaintiffs’ right to remain married by enforcing the marriage bans, which right this Court has already identified as “a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.” Obergefell, 962 F. Supp. 2d at 978. “When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.” Id. at 979; see also Windsor, 133 S. Ct. at 2694 (When one jurisdiction refuses recognition of family relationships legally established in another, “the differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify”).
12 See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982) (an individual involuntarily committed to a custodial facility because of a disability retained liberty interests including a right to freedom from bodily restraint, thus departing from a longstanding historical tradition in which people with serious disabilities were not viewed as enjoying such substantive due process rights and were routinely subjected to bodily restraints in institutions); Eisenstadt v. Baird, 405 U.S. 438 (1972) (striking down a ban on distributing contraceptives to unmarried persons, building on a holding in Griswold, 381 U.S. at 486, that states could not prohibit the use of contraceptives by married persons); Lawrence, 539 U.S. at 566-67 (lesbian and gay Americans could not be excluded from the existing fundamental right to sexual intimacy, even though historically they had often been prohibited from full enjoyment of that right).
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As the Supreme Court has held: this differential treatment “humiliates tens of thousands of children now being raised by same-sex couples,” which group includes Adopted Child Doe and the children who will be born to the Henry/Rogers, Yorksmith, and Noe/McCracken families. Windsor, 133 S. Ct. at 2694.
3. Right to Parental Authority Finally, the marriage recognition bans also implicate the parenting rights of samesex married couples with children. The Constitution accords parents significant rights in the care and control of their children. See Parham v. J.R., 442 U.S. 584, 602 (1979). Parents enjoy unique rights to make crucial decisions for their children, including decisions about schooling, religion, medical care, and with whom the child may have contact. See, e.g., id. (medical decisions); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (education and religion); Meyer v. Nebraska, 262 U.S. 390 (1923) (education); Troxel v.Granville, 530 U.S. 57 (2000) (visitation with relatives). U.S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances. See Troxel, 530 U.S. at 66; Stanley v. Illinois, 405 U.S. 645, 651-52 (1972); see also, e.g., In re D.A., 862 N.E.2d 829, 832 (Ohio 2007) (citing Ohio cases on parents’ “paramount” right to custody of their children). 4. Level of Scrutiny As a general matter, the Supreme Court applies strict scrutiny when a state law encroaches on a fundamental right, and thus such scrutiny is appropriate in the context of
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the right to marry and the right to parental authority. See, e.g., Roe v. Wade, 410 U.S. 113, 155 (1973).
The right to marriage recognition has not been expressly recognized as “fundamental,” however, and in the previously referenced set of cases establishing the highly-protected status of existing marriage, family, and intimate relationships, the Supreme Court has often applied an intermediate standard of review falling in between rational basis and strict scrutiny. See, e.g., Moore, 431 U.S. at 113 (1977) (balancing the state interests advanced and the extent to which they are served by the challenged law against the burden on plaintiff’s rights); Zablocki, 434 U.S. at 374 (same). As this Court held in Obergefell, “the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ alreadyestablished marital and family relations.” 962 F. Supp. 2d at 979.
5. Burden on Plaintiffs When couples – including same-sex couples – enter into marriage, it generally involves long-term plans for how they will organize their finances, property, and family lives. “In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere.” In re Estate of Lenherr, 314 A.2d 255, 258 (Pa. 1974). Married couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with it – including bank accounts, inheritance rights, property, and other rights and benefits associated with marriage – will follow them.
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When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction by refusing to recognize the marriage, that state unlawfully intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. After Lawrence, same-sex relationships fall squarely within this sphere, and when it comes to same-sex couples, a state may not “seek to control a personal relationship,” “define the meaning of the relationship,” or “set its boundaries absent injury to a person or abuse of an institution the law protects.” Lawrence, 539 U.S at 578.
For example, when a parent’s legal relationship to his or her child is terminated by the state, it must present clear and convincing evidence supporting its action to overcome the burden of its loss, Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982); and, here, a similar legal familial relationship is terminated by Ohio’s marriage recognition ban. Moreover, the official statutory and constitutional establishment of same-sex couples married in other jurisdictions as a disfavored and disadvantaged subset of relationships has a destabilizing and stigmatizing impact on those relationships. In striking down the statutory provision that had denied gay and lesbian couples federal recognition of their otherwise valid marriages in Windsor, the Supreme Court observed:
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[The relevant statute] tells those couples, and all the world, that their otherwise valid marriages are unworthy of . . . recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . 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. 133 S. Ct. at 2694 (emphasis supplied). In the family law context, while opposite-sex married couples can invoke stepparent adoption procedures or adopt children together, same-sex married couples cannot. Ohio courts allow an individual gay or lesbian person to adopt a child, but not a same-sex couple. Obergefell, 962 F. Supp. 2d at 980. Same-sex couples are denied local and state tax benefits available to heterosexual married couples, denied access to entitlement programs (Medicaid, food stamps, welfare benefits, etc.) available to heterosexual married couples and their families, barred by hospital staff and/or relatives from their long-time partners’ bedsides during serious and final illnesses due to lack of legallyrecognized relationship status, denied the remedy of loss of consortium when a spouse is seriously injured through the acts of another, denied the remedy of a wrongful death claim when a spouse is fatally injured through the wrongful acts of another, and evicted from their homes following a spouse’s death because same-sex spouses are considered complete strangers to each other in the eyes of the law. Id.
Identification on the child’s birth certificate is the basic currency by which parents can freely exercise these protected parental rights and responsibilities. It is also the only common governmentally-conferred, uniformly-recognized, readily-accepted
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record that establishes identity, parentage, and citizenship, and it is required in an array of
legal contexts. Obtaining a birth certificate that accurately identifies both parents of
a child born using anonymous donor insemination or adopted by those parents is
vitally important for multiple purposes. The birth certificate can be critical to registering the child in school;13 determining the parents’ (and child’s) right to make medical decisions at critical moments; obtaining a social security card for the child;14
obtaining social security survivor benefits for the child in the event of a parent’s death;
establishing a legal parent-child relationship for inheritance purposes in the event of a parent’s death;15 claiming the child as a dependent on the parent’s insurance plan;
claiming the child as a dependent for purposes of federal income taxes; and obtaining a passport for the child and traveling internationally.16 The inability to obtain an
accurate birth certificate saddles the child with the life-long disability of a
government identity document that does not reflect the child’s parentage and
burdens the ability of the child’s parents to exercise their parental rights and
responsibilities.
13 See Ohio Rev. Code Ann. § 3313.672(A)(1) (birth certificate generally must be presented at time of initial entry into public or nonpublic school 14 See Social Security Administration, Social Security Numbers for Children, http:// www.ssa.gov/pubs/EN-05- 10023.pdf#nameddest=adoptiveparents (last visited Feb. 26, 2014). 15 See Sefcik v. Mouyos, 869 N.E.2d 105, 108 (Ohio App. 2007) (noting that a child’s birth certificate is prima facie evidence of parentage for inheritance purposes). 16 See Minors under Age 16, U.S. Dept. of State, U.S. Passports & Int’l Travel, http://travel.state. gov/passport/get/minors/minors_834.html (last visited Feb. 26 2014); New U.S. Birth Certificate Requirement, U.S. Dept of State, U.S. Passports & Int’l Travel, http://travel.state.gov/ passport/ passport_5401.html (last visited Feb. 26, 2014) (certified birth certificates listing full names of applicant’s parents must be submitted with passport application as evidence of citizenship).
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The benefits of state-sanctioned marriage are extensive, and the injuries raised by Plaintiffs represent just a portion of the harm suffered by same-sex married couples due to Ohio’s refusal to recognize and give legal effect to their lawful unions.
6. Potential State Interests Defendants advance a number of interests in support of Ohio’s marriage recognition ban. (Doc. 20 at 32-36). Defendants cite “the decision to preserve uniformly the traditional definition of marriage without regard to contrary determinations by some other jurisdictions,” “avoiding judicial intrusion upon a historically legislative function,” “assur[ing] that it is the will of the people of Ohio … that controls,” “approaching social change with deliberation and due care,” and “[p]reserving the traditional definition of marriage,” although they raise these interests in the context of a rational basis equal protection analysis. (Id.) Although strict scrutiny is implicated by more than one fundamental right threatened by the marriage recognition ban, even in the intermediate scrutiny context, these vague, speculative, and/or unsubstantiated state interests rise nowhere near the level necessary to counterbalance the specific, quantifiable, particularized injuries detailed above suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are denied to them by the state. In particular, the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.
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The stated interest in “preserving the traditional definition of marriage” is not a
legitimate justification for Ohio’s arbitrary discrimination against gays based solely on
their sexual orientation. As federal judge John G. Heyburn II eloquently explained in
invalidating Kentucky’s similar marriage recognition ban:
Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused – even angry – when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer.
Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.
The beauty of our Constitution is that is accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
Bourke v. Beshear, 2014 WL 556729, at 10 (W.D. Ky. Feb. 12, 2014) (emphasis
supplied) (declaring Kentucky’s anti-recognition provisions unconstitutional on equal
protection grounds).
Defendants argue that Windsor stressed that “regulation of domestic relations is an
area that has long been regarded as a virtually exclusive province of the States.” 133 S.
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Ct. at 2692. However, as this Court emphasized in Obergefell, this state regulation of marriage is “subject to constitutional guarantees” and “the fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages absent due process of law.” 962 F. Supp. 2d at 981.
Quintessentially, as the Supreme Court has held, marriage confers “a dignity and status of immense import.” Windsor, 133 U.S. at 2692. When a state uses “its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhance[s] the recognition, dignity, and protection of the class in their own community.” Id. Here, based on the record, Defendants have again failed to provide evidence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose this immensely important dignity, status, recognition, and protection, as such a state interest does not exist.
Accordingly, Ohio’s refusal to recognize same-sex marriages performed in other jurisdictions violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.
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C. Equal Protection Clause This Court’s analysis in Obergefell also compels the conclusion that Defendants
violate Plaintiffs’ right to equal protection by denying recognition to their marriages and the protections for families attendant to marriage. In Obergefell, this Court noted Ohio’s long history of respecting out-of-state marriages if valid in the place of celebration, with only the marriages of same-sex couples singled out for differential treatment. 962 F. Supp. 2d at 983-84.
Under Ohio law, if the Henry/Rogers, Yorksmith, and Noe/McCracken couples’ marriages were accorded respect, both spouses in the couple would be entitled to recognition as the parents of their expected children. As a matter of statute, Ohio respects the parental status of the non-biologically related parent whose spouse uses AI to conceive a child born to the married couple. See Ohio Rev. Code § 3111.95 (providing that if “a married woman” uses “non-spousal artificial insemination” to which her spouse consented, the spouse “shall be treated in law and regarded as” the parent of the child, and the sperm donor shall have no parental rights); see also Ohio Rev. Code § 3111.03 (providing that a child born to a married couple is presumed the child of the birth mother’s spouse).
An Ohio birth certificate is a legal document, not a medical record. Birth certificates for newborn babies are generated by Defendants through use of the Integrated Perinatal Health Information System (“IPHIS”) with information collected at birth
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facilities.17 Informants are advised that “[t]he birth certificate is a document that will be
used for important purposes including proving your child’s age, citizenship and
parentage. The birth certificate will be used by your child throughout his/her life.”18
The Ohio Department of Health routinely issues birth certificates naming as parents
both spouses to opposite-sex married couples who use AI to conceive their
children.19 However, Defendants refuse to recognize these Plaintiffs’ marriages and the
parental presumptions that flow from them, and will refuse to issue birth certificates
identifying both women in these couples as parents of their expected children. (Doc. 15
at ¶¶ 59-62).
17 A suggested worksheet is provided to the hospital or other birth facility by the Ohio Department of Health for use by the birth mother or other informant. A copy of the worksheet can be found at Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd. aspx? Page= 3&TopicRelationID=5&Content=5994 (last visited Feb. 28, 2014). The hospital or birth facility then enters the information gathered into the IPHIS. Two flow sheets describing the typical sequence of steps leading to a birth certificate can be found at Birth Facility Easy-Step Guide For IPHIS, pages 4-5, Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd. aspx?Page=3& TopicRelationID=519&Content=4597 (last visited Feb. 28, 2014).
18 Mother’s Worksheet for Child’s Birth, available at Ohio Department of Health, http://vitalsupport.odh.ohio.gov /gd/gd.aspx?Page=3&TopicRelationID=5&Content=5994 (last visited February 28, 2014).
19 See Ohio Rev. Code § 3111.03(A)(1) (“[a] man is presumed to be the natural father of a child,” including when “[t]he man and the child’s mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child’s mother separate pursuant to a separation agreement”); see also Ohio Rev. Code § 3111.95(A) (“If a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and regarded as the natural child of the husband.”); Ohio Rev. Code § 3705.08(B) (“All birth certificates shall include a statement setting forth the names of the child’s parents. . . ”).
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Similarly, when an Ohio-born child is adopted by the decree of a court of another state, the Ohio Department of Health “shall issue … a new birth record using the child’s adoptive name and the names of and data concerning the adoptive parents.” Ohio Rev. Code § 3705.12(A)(1). However, the Department of Health refuses to comply with this requirement based on Ohio Rev. Code § 3107.18(A), which provides that “[e]xcept when giving effect to such a decree would violate the public policy of this state, a court decree … establishing the relationship by adoption, issued pursuant to due process of law by a court of any jurisdiction outside this state … shall be recognized in this state.”
Before Governor Kasich’s administration and prior-Defendant Wymyslo’s leadership of the Department of Health, Ohio recognized out-of-state adoption decrees of same-sex couples and supplied amended birth certificates identifying the adoptive parents. (See Docs. 4-6, 4-7, and 4-8). However, the current administration takes the position that issuing birth certificates under such circumstances would violate “public policy,” i.e., Ohio’s purported limitation on adoptions within the State to couples only if those couples are married. O.R.C. § 3107.03(A). If the Vitale/Talmas spouses were an opposite-sex couple, Defendant Himes would recognize their marriage, their New York adoption decree, and their right to an accurate birth certificate for Adopted Child Doe.
1. Heightened Scrutiny As the Court discussed in Obergefell, the Sixth Circuit has not reviewed controlling law regarding the appropriate level of scrutiny for reviewing classifications based on sexual orientation, such as Ohio’s marriage recognition ban, since Windsor.
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962 F. Supp. 2d at 986. The most recent Sixth Circuit case to consider the issue, Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012), rejected heightened scrutiny by relying on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006), which in turn relied on Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997). As the Court concluded in Obergefell, however, Equality Foundation now rests on shaky ground and there are “ample reasons to revisit the question of whether sexual orientation is a suspect classification,” including the fact that Sixth Circuit precedent on this issue – Equality Foundation among it – is based on Bowers v. Hardwick, 478 U.S. 186 (1986), which was overruled by Lawrence, 549 U.S. at 558. Bassett v. Snyder, No. 12-10038, 2013 WL 3285111, at *1 (E.D. Mich. June 28, 2013) (same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving public employer benefits).20 The Supreme Court, in overruling Bowers, emphatically declared that it “was not correct when it was decided and is not correct today.” Lawrence, 539 U.S. at 578.
As a result, this Court held in Obergefell that lower courts without controlling post-Lawrence precedent on the issue should now apply the criteria mandated by the Supreme Court to determine whether sexual orientation classifications should receive
20 See also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The Supreme Court’s holding in Lawrence ‘remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class”’) (citations omitted); Golinski, 824 F. Supp. 2d at 984 (“[T]he reasoning in [prior circuit court decisions], that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence”).
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heightened scrutiny. 962 F. Supp. 2d at 987. The Court then analyzed the four factors that, to varying degrees, may be considered to determine whether classifications qualify as suspect or quasi-suspect: whether the class (1) has faced historical discrimination, (2) has a defining characteristic that bears no relation to ability to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at 987-91. The Court concluded that “[s]exual orientation discrimination accordingly fulfills all the criteria the Supreme Court has identified, thus Defendants must justify Ohio’s failure to recognize same-sex marriages in accordance with a heightened scrutiny analysis,” and finally that Defendants “utterly failed to do so.” Id. at 991. Subsequent to Obergefell, the Ninth Circuit similarly held that Windsor “requires heightened scrutiny” for classifications based on sexual orientation. Smithkline Beechan Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir. 2014) (“we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection… Thus, there can no longer be any question that gays and lesbians are no longer a ‘group or class of individuals normally subject to ‘rational basis’ review.’”) (citation omitted). The Court’s entire Obergefell analysis applies and controls here, and classifications based on sexual orientation must pass muster under heightened scrutiny to survive constitutional challenge.
Here, Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships.
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Defendants withhold accurate birth certificates from these children, burdening the children because their parents are not the opposite-sex married couples who receive the State’s special stamp of approval. The Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause. See, e.g., Plyler v. Doe, 457 U.S. 202, 220 (1982) (striking down statute prohibiting undocumented immigrant children from attending public schools because it “imposes its discriminatory burden on the basis of a legal characteristic over which the children can have little control”).21 Such discrimination also triggers heightened scrutiny. See, e.g., Pickett v. Brown, 462 U.S. 1, 8 (1983).
The children in Plaintiffs’ and other same-sex married couples’ families cannot be denied the right to two legal parents, reflected on their birth certificates and given legal respect, without a sufficient justification. No such justification exists.
2. Rational Basis As the Court further held in Obergefell, even if no heightened level of scrutiny is applied to Ohio’s marriage recognition bans, they still fail to pass constitutional muster. 962 F. Supp. 2d at 991. The Court noted that “[e]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the
21 See also Mathews v. Lucas, 427 U.S. 495, 505 (1976) (“visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”); Weber v. Aetna Ca. Sur. Co., 406 U.S. 164, 175 (1972) (“imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing”); Walton v. Hammons, 192 F.3d 590, 599 (6th Cir. 1999) (holding state could not withhold children’s food stamp support based on their parents’ non-cooperation in establishing paternity of their children).
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relation between the classification adopted and the object to be attained,” that “some objectives … are not legitimate state interests,” and, even when a law is justified by an ostensibly legitimate purpose, that “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” Romer, 517 U.S. at 632; City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985).
At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633 (emphasis supplied); see also Windsor, 133 S. Ct. at 2693; City of Cleburne, Tex., 473 U.S. at 450; U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). This Court concluded by noting that in Bassett, 2013 WL 3285111 at 24-26, the court held that same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving public employee benefits where “[t]he historical background and legislative history of the Act demonstrate that it was motivated by animus against gay men and lesbians.” The Court further determined that a review of the historical background and legislative history of the laws at issue and the evidentiary record established conclusively that the requested relief must also be granted to Plaintiffs on the basis of the Equal Protection Clause. Obergefell, 962 F. Supp.2d at 993.
Again, the Court’s prior analysis controls, and Ohio’s marriage recognition bans also fail rational basis review.
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3. Potential State Interests This Court has already considered and rejected as illegitimate and irrational any purported State interests justifying the marriage recognition bans. Obergefell, 962 F. Supp. 2d at 993-95. Based on this controlling analysis, the government certainly cannot meet its burden under heightened scrutiny to demonstrate that the marriage recognition ban is necessary to further important State interests. All advanced State interests are as inadequate now as they were several months ago to justify the discrimination caused by the marriage recognition ban and the ban’s particularly harmful impact on Ohio-born children. Of particular relevance to this case, in Obergefell this Court analyzed and roundly rejected any claimed government justifications based on a preference for procreation or childrearing by heterosexual couples. 962 F. Supp. 2d at 994. This Court further concluded that the overwhelming scientific consensus, based on decades of peerreviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. Id. at n.20. In fact, the U.S. Supreme Court in Windsor (and more recently, numerous lower courts around the nation) similarly rejected a purported government interest in establishing a preference for or encouraging parenting by heterosexual couples as a justification for denying marital rights to same-sex couples and their families. The Supreme Court was offered the same false conjectures about child welfare this Court rejected in Obergefell, and the Supreme Court found those arguments so insubstantial that it did not deign to
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acknowledge them. Instead, the Supreme Court concluded:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others [the federal government’s non-recognition of marriages is unconstitutional].
Windsor, 133 S. Ct. at 2696 (emphasis supplied). All of the federal trial court court
decisions since Windsor have included similar conclusions on this issue, including that
child welfare concerns weigh exclusively in favor of recognizing the marital rights of
same-sex couples.22
22 See, e.g., De Leon, 2014 WL 715741 (declaring unconstitutional Texas bans on same-sex marriage and out-of-state marriage recognition, and rejecting as irrational purported childrearing and procreation justifications); Bostic, 2014 WL 561978 at 18 (declaring unconstitutional Virginia’s marriage ban, which has the effect of “needlessly stigmatizing and humiliating children who are being raised” by same-sex couples and “betrays” rather than serves an interest in child welfare); Bourke, 2014 WL 556729 at 8 (rejecting purported government interest in withholding marriage recognition to advance procreation and childrearing goals, and holding Kentucky’s marriage recognition ban, similar to Ohio’s, unconstitutional); Bishop, 2014 WL 116013 at 28–33 (rejecting purported government interests in responsible procreation and childrearing as justifications for Oklahoma’s same-sex marriage ban, which was held unconstitutional); Kitchen, 2013 WL 6697874 at 25–27 (declaring Utah’s marriage ban unconstitutional and finding that same-sex couples’ “children are also worthy of the State’s protection, yet” the marriage ban “harms them for the same reasons that the Supreme Court found that DOMA harmed the children of same-sex couples”); Griego v. Oliver, No. 34-306, 2013 WL 6670704, at 3 (D.N.M. Dec. 19, 2013) (rejecting “responsible procreation and childrearing” rationales to justify New Mexico’s marriage ban, and declaring ban in violation of state constitution).
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In sum, under Supreme Court jurisprudence, and as confirmed in numerous recent trial court decisions, states do not have any governmental interest sufficient to justify their refusal to recognize lawful out-of-state marriages between same-sex couples.23 D. Full Faith and Credit
Because this Court has found that Ohio’s marriage recognition bans are constitutionally invalid on their face and unenforceable, Defendants no longer have a basis on which to argue that recognizing same-sex marriages on out-of-state adoption decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs’ arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a right to full faith and credit for their New York adoption decree here in Ohio.i E. Irreparable Harm
Finally, Plaintiffs have easily met their burden to demonstrate they are suffering irreparable harm from Defendants’ violation of their rights to due process, equal protection, and full faith and credit for their adoption decrees. Birth certificates are vitally important documents. As outlined above, Ohio’s refusal to recognize Plaintiffs’ and other same-sex couples’ valid marriages imposes numerous indignities, legal disabilities, and psychological harms. Further, the State violates Plaintiffs’ and other
23 Again, the Court’s Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages lawfully performed in states which authorize such marriages.
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same-sex couples’ fundamental constitutional rights to marry, to remain married, and to function as a family.
“Constitutional violations are routinely recognized as causing irreparable harm unless they are promptly remedied.” Obergefell, 962 F. Supp. 2d at 996; see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”); Saenz v. Roe, 526 U.S. 489, 498 (1999) (violation of the right to travel interstate constitutes irreparable injury). Without a permanent injunction and declaratory relief, the affected same-sex couples and their children would have to continue to navigate life without the birth certificates that pave the way through numerous transactions, large and small. They would needlessly suffer harmful delays, bureaucratic complications, increased costs, embarrassment, invasions of privacy, and disrespect. Same-sex couples’ legal status as parents will be open to question, including in moments of crisis when time and energy cannot be spared to overcome the extra hurdles Ohio’s discrimination erects.24 The marital status of the couples will likewise be open to question, depriving these families of the far-reaching security, protections, and dignity that come with recognition of their marriages.
24 For example, families can be barred in hospitals from their loved ones’ bedsides due to a lack of legally-recognized relationship status. (Id. Doc. 17-3 at ¶ 23). And, although Ohio same-sex couples may obtain co-custody agreements for their children, such an agreement “does not … create the full rights and responsibilities of a legally recognized child-parent relationship.” (Id. at ¶ 19). Moreover, inheritance is governed in part by parentage (Id. at ¶¶ 21, 24, 30), and children are entitled to bring wrongful death actions (Doc. 17-7 at ¶ 37). Indeed, “[s]ame-sex married couples and their children live in an Ohio that automatically denies most state and federal rights, benefits and privileges to them.” (Id. at ¶ 103).
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Plaintiffs and other affected same-sex couples require injunctive and declaratory
relief to lift the stigma imposed by Defendants’ disrespect for their spousal and parental
statuses. Imposition of these burdens on same-sex couples serves no legitimate public
interest that could counteract the severe and irreparable harm imposed by the marriage
recognition bans.
Plaintiffs have therefore more than adequately demonstrated their entitlement to
declaratory and injunctive relief.ii
IV. CONCLUSION
Accordingly, based on the foregoing, Plaintiffs’ Motion for Declaratory Judgment
and Permanent Injunction (Doc. 18) is hereby GRANTED. Specifically:
1. The Court finds that those portions of Ohio Const. Art. XV, § 11, 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 to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriages recognized and accepted as legal in Ohio and the enjoy the rights, protections, and benefits of marriage provided to heterosexual married couples under Ohio law, are denied significant liberty interests and fundamental rights without due process of law and in violation of their right to equal protection.
2. Defendants and their officers and agents are permanently enjoined from (a) enforcing the marriage recognition ban, (b) denying same-sex couples validly married in other jurisdictions all the rights, protections, and benefits of marriage provided under Ohio law, and (c) denying full faith and credit to decrees of adoption duly obtained by same-sex couples in other jurisdictions. The Court will separately issue an Order of Permanent Injunction to this effect.
3. Defendants shall issue birth certificates to Plaintiffs for their children listing both same-sex parents.
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IT IS SO ORDERED.25 Date: 4/14/14

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

25 The Court STAYS enforcement of this Order and the Permanent Injunction until the parties have briefed whether or not this Court should fully stay its Orders until completion of appeal to the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court. The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the imminent births of their children and other time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth certificates for Plaintiffs’ children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. Nevertheless, Plaintiffs shall file today their memorandum contra Defendants’ oral motion to stay, and Defendants shall file a reply memorandum before 3:00 p.m. tomorrow. The Court shall then rule expeditiously.
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i Article IV, § 1 of the U.S. Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In incorporating this clause into our Constitution, the Framers “foresaw that there would be a perpetual change and interchange of citizens between the several states.” McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312, 315 (1839). The Supreme Court has explained that the “animating purpose” of the full faith and credit command is:
to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.
Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1988) (quoting Milwaukee Cnty v. M.E., White Co., 296 U.S. 268, 277 (1935)).
In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction. Baker, 522 U.S. at 233. Proper full faith and credit analysis distinguishes between public acts, which may be subject to public policy exceptions to full faith and credit, and judicial proceedings, which decidedly are not subject to any public policy exception to the mandate of full faith and credit See id. at 232 (“Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments”); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943) (“The full faith and credit clause and the Act of Congress implementing it have, for most purposes, placed a judgment on a different footing from a statute of one state, judicial recognition of which is sought in another”).
The Supreme Court has thus rejected any notion that a state may disregard the full faith and credit obligation simply because the state finds the policy behind the out-of-state judgment contrary to is own public policies. According to the Court, “our decisions support no roving ‘public policy exception’ to the full faith and credit due judgments.” Baker, 522 U.S. at 233; see also Estin v. Estin, 334 U.S. 541, 546 (1948) (Full Faith and Credit Clause “ordered submission … even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it”); Williams v. North Carolina, 317 U.S. 287 (1942) (requiring North Carolina to recognize change in marital status effected by Nevada divorce decree contrary to laws of North Carolina).
Consistent with the guarantee of full faith and credit, Defendant Himes’s Department of Health is mandated under a provision of the Vital Statistics section of the Ohio Code to issue an amended birth certificate upon receipt of an adoption decree issued by the court of another state. Pursuant to Ohio Revised Code § 3705.12(A) and (B), upon receipt of a decree of adoption of an Ohio-born child, issued with due process by the court of another state, “the department of health shall issue, unless otherwise requested by the adoptive parents, a new birth record using the child’s adopted name and the names of and data concerning the adoptive parents… .” This statute does not leave discretion in Defendant Himes’s hands to reject duly issued out-of-state adoption decrees based on whether the adoption could have been obtained under Ohio law.
Indeed, as already discussed, before the tenure of prior-Defendant Wymyslo, Ohio issued amended birth certificates based on the out-of-state adoption decrees of same-sex parents, notwithstanding Ohio’s purported policy against adoptions by unmarried couples within the State. Only recently has the Department of Health taken the position that Ohio Revised Code. § 3107.18, a separate provision of the “Adoption” section of the Code, frees it of its obligation to issue a corrected birth certificate upon
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receipt of another state’s duly issued judgment of adoption decreeing a same-sex couple as adoptive parents. (Doc. 4-6 at 4-5). According to Defendant Himes, that provision requires the Department of Health to refuse recognition to out-of-state adoption decrees of same-sex parents, whose marriages are disrespected under Ohio law, because “giving effect to such a decree would violate the public policy of this state.” Ohio Revised Code § 3107.18.
This backward evolution in Ohio, from granting accurate birth certificates to adoptive same-sex parents and their children, to the current administration’s refusal to do so, is yet another manifestation of the irrational animus motivating Defendants’ discriminatory treatment of lesbian and gay families. The application of section 3107.18’s “public policy” exception to the adoption decree of another state is contrary to Ohio’s consistent recognition of the duly-issued adoption decrees of state courts of competent jurisdiction nationwide. See, e.g., Matter of Bosworth, No. 86-AP-903, 1987 WL 14234, at *2 (Ohio Ct. App. 10th Dist. July 16, 1987) (recognizing Florida adoption decree because, “if due process was followed by another state’s court in issuing an adoption decree, an Ohio court is mandated to give full faith and credit to that state’s decree”); Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct. App. 5th Dist. May 3, 1991) (recognizing New York adoption decree over objection of Ohio biological parents). Defendant Himes impermissibly injects a “roving ‘public policy exception’ to the full faith and credit due judgments,” precisely what the Supreme Court has made clear the Full Faith and Credit Clause prohibits.
The duty to effectuate this command has commonly fallen on state courts in actions to enforce judgments obtained in out-of-state litigation, which is why many Supreme Court cases identify state courts as violators of the state’s full faith and credit obligations. See Adar v. Smith, 639 F.3d 146, 171 (5th Cir. 2011) (Weiner, J., dissenting) (citing Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir. 1992) (“[U]nder the common law, the procedure to enforce the judgment of one jurisdiction in another required the filing of a new suit in the second jurisdiction to enforce the judgment of the first”)). However, this historical fact does not dictate that the command is directed only to state courts. For example, now “all but two or three of the fifty states have enacted some version of the Revised Uniform Enforcement of Foreign Judgments Act, which authorizes non-judicial officers to register out-of-state judgments, thereby entrusting to them their states’ obligations under the [Full Faith and Credit] Clause.” Adar, 639 F.3d at 171 (Weiner, J., dissenting) (citation omitted). Ohio’s vital statistics statutes likewise transfer to state executive officials the responsibility to receive and recognize out-of-state judgments of adoption and to issue amended Ohio birth certificates based on those judgments. See Ohio Revised Code § 3705.12(A) and (B).
The Fifth Circuit stands alone in holding that federal claims to enforce rights conferred by the Full Faith and Credit Clause are unavailable under § 1983 against non-judicial state officials. Adar, 639 F.3d at 153. Given that § 1983 creates a remedy for those denied “rights, privileges, or immunities secured by the Constitution and laws,” 42 U.S.C. § 1983, and that the Supreme Court has repeatedly held that § 1983 is a remedial statute that must be applied expansively to assure the protection of constitutional rights (see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 700-01 (1978) (§ 1983 is “to be broadly construed, against all forms of official violation[s] of federally protected rights”); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) (§ 1983’s coverage is to be “broadly construed”); Wayne v. Vill. of Sebring, 36 F.3d 517, 528 (6th Cir. 1994) (same)), other circuits have unremarkably entertained such claims. See Rosin v. Monken, 599 F.3d 574, 575 (7th Cir. 2010) (adjudicating full faith and credit claim against state actors on the merits in § 1983 action); United Farm Workers v Ariz. Agric. Emp’t Relations Bd., 669 F.2d 1249, 1257 (9th Cir. 1982) (same); Lamb Enters., Inc. v. Kiroff, 549 F.2d 1052, 1059 (6th Cir. 1977) (propriety of § 1983 claim in federal court to enforce full faith and credit obligation against state judge not questioned, but abstention deemed warranted).
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The Supreme Court has employed a three-part test, articulated in Golden State Transit Corp., 493 U.S. at 106, to determine whether a constitutional provision creates a right actionable under § 1983: whether the provision 1) “creates obligations binding on the governmental unit,” 2) that are sufficiently concrete and specific as to be judicially enforced, and 3) were “intended to benefit the putative plaintiff.” Dennis v. Higgins, 498 U.S. 439, 449 (1991) (internal quotations and citations omitted). The Full Faith and Credit Clause explicitly creates obligations binding on the states, is concrete and judicially recognizable, and was intended to protect the rights of individuals to require respect across state lines for judgments in their favor. See Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n.23 (1980) (“[T]he purpose of [the Clause] was to preserve rights acquired or confirmed under the … judicial proceedings of one state by requiring recognition of their validity in other states. …”) (quoting Pac. Emp’rs Ins. Co. v. Indus. Accident Comm’n of Cal., 306 U.S. 493, 501 (1939)); Magnolia Petroleum Co., 320 U.S. at 439 (referring to the Clause as preserving judicially established “rights”); see also Adar, 639 F.3d at 176 (Weiner, J., dissenting) (“For all the same reasons advanced by the Dennis Court in recognizing the private federal right created by the Commerce Clause… the [Full Faith and Credit] Clause indisputably does confer a constitutional ‘right’ for which § 1983 provides an appropriate remedy”).
In Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), a § 1983 action, the Tenth Circuit held that Oklahoma was required to issue an amended birth certificate listing as parents both members of a California same-sex couple that had legally adopted a child born in Oklahoma, notwithstanding Oklahoma’s prohibition against such adoptions within the state. Id. at 1141-42. Oklahoma, like Ohio, had a statute providing for issuance of amended birth certificates for children adopted in other states’ courts. The Tenth Circuit ruled that the Full Faith and Credit Clause required Oklahoma “to apply its own law to enforce [those] adoption order[s] in an ‘even-handed’ manner.” Id. at 1154 (citing Baker, 522 U.S. at 235). The Tenth Circuit concluded: “We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause.” Id. at 1156. Oklahoma’s “refusal to recognize final adoption orders of other states that permit adoption by same-sex couples” was therefore “unconstitutional.” Id.
The principles and precedent outlined above provide a compelling basis to conclude that the Full Faith and Credit Clause also requires full recognition of Plaintiffs Vitale’s and Talmas’s New York adoption decree, and this Court so holds.
(As in Obergefell, this Court again acknowledges the continuing pendency of Section 2 of the discredited federal Defense of Marriage Act (“DOMA”), which was not before the Supreme Court in Windsor, and wherein Congress has sought to invoke its power under the Full Faith and Credit Clause to establish that “[n]o State … shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State,” 28 U.S.C. § 1738C. However, as in Obergefell, although Section 2 of DOMA is not specifically before the Court, the implications of today’s ruling speak for themselves.)
43

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ii

However, the Court agrees with Defendants that Plaintiff Adoption S.T.A.R. lacks standing to

pursue its claims. Rather than relying on its own rights, Adoption S.T.A.R. purports to bring this action

“on behalf of its clients who seek to complete adoptions” involving Ohio-born children and seeks relief

for any … “same-sex couples married in [other] jurisdiction … who become clients of Plaintiff Adoption

S.T.A.R. …” (Doc. 1 at 17). To establish Article III standing, a plaintiff must show that an injury is

“concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and

redressable by a favorable ruling.” Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1147 (2013)

(internal quotations omitted). Adoption S.T.A.R. bears the burden of proving each element of standing

“in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at successive stages of the litigation.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

“[A] party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal quotations omitted). If a party can demonstrate injury, however, that party may pursue the rights of others when it can establish that (1) “the party asserting the right has a ‘close’ relationship with the person who possesses the right” and (2) “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Boland v. Holder, 682 F.3d 531, 537 (6th Cir. 2012) (internal quotations omitted). The concept of third-party standing is typically disfavored. Kowalski, 543 U.S. at 130; see also Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (outlining reasons why “[f]ederal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation”).

Here, Adoption S.T.A.R. fails to satisfy its burden of establishing standing because it fails to satisfy the hindrance requirement. Adoption S.T.A.R. must demonstrate that its clients face some obstacle “in litigating their rights themselves.” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 209 (6th Cir. 2011). In analyzing this question, the United States Supreme Court has generally looked for “daunting” barriers or “insurmountable procedural obstacles” to support a finding of hindrance. See Miller v. Albright, 523 U.S. 420, 449-50 (1998) (O’Connor, J., concurring, Kennedy, J., joining) (“A hindrance signals that the rightholder did not simply decline to bring the claim on his own behalf, but could not in fact do so”). Adoption S.T.A.R. has not shown that same-sex couples married in other jurisdictions are hindered from litigating their own rights, and the participation of the other Plaintiffs in this lawsuit demonstrates that such parties are capable of doing so. Moreover, because birth certificates can be amended and reissued, there are no significant time restrictions on the ability of potential third parties to bring their own actions. Under these circumstances, where the time constraints and logistical and emotional burdens that prevented injured third parties from vindicating their rights in Obergefell do not exist, there is no basis for departing from the ordinary rule that “one may not claim standing … to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255 (1953).

Consequently, the Court finds that Plaintiff Adoption S.T.A.R. lacks standing to pursue its claims. The Court also notes, however, that given today’s ruling, the question of Adoption S.T.A.R.’s standing is ultimately of no practical effect.

44

Case: 1:14-cv-00129-TSB Doc #: 28 Filed: 04/14/14 Page: 45 of 45 PAGEID #: 858
Happy Adoption Day Words and Music by John McCulcheon © 1992 John McCutcheon/Appalsongs (ASCAP)
Oh who would have guessed, who could have seen Who could have possibly known All these roads we have traveled, the places we’ve been Would have finally taken us home.
So here’s to you, three cheers to you Let’s shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day!
There are those who think families happen by chance A mystery their whole life through But we had a voice and we had a choice We were working and waiting for you.
So here’s to you, three cheers to you Let’s shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day!
No matter the time and no matter the age No matter how you came to be No matter the skin, we are all of us kin We are all of us one family.
So here’s to you, three cheers to you Let’s shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day!
45

 
 Case: 1:14-cv-00129-TSB Doc #: 29 Filed: 04/14/14 Page: 1 of 3 PAGEID #: 859
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRITTANI HENRY, et al. Plaintiffs,
vs.
LANCE HIMES, et al. Defendants.

: Case No. 1:13-cv-129 : : Judge Timothy S. Black : : : :

DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

Upon consideration of Plaintiffs’ Motion for Declaratory Judgment and Permanent

Injunction (Doc. 18), the parties’ responsive memoranda (Docs. 20 and 25), and the

record evidence, the Court has found and concluded that Plaintiffs’ motion is

appropriately granted. (Doc. 28). 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) (Ohio’s “marriage recognition bans”) 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 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 where the heterosexual marriage is

of a kind not authorized by Ohio. The record evidence demonstrates that there is no state

interest sufficient to justify denying same-sex married couples the same recognition of

their existing marriages.

1

Case: 1:14-cv-00129-TSB Doc #: 29 Filed: 04/14/14 Page: 2 of 3 PAGEID #: 860
Therefore, this Court hereby DECLARES that those portions of Ohio Const. Art. XV, § 11, 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 to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriages recognized and accepted as legal in Ohio, and to enjoy the rights, protections, and benefits of marriage provided to heterosexual married couples under Ohio law, are denied significant liberty interests and fundamental rights without due process of law and in violation of their right to equal protection.
Defendants Lance Himes and Camille Jones, and their officers, agents, and employees, are also PERMANENTLY ENJOINED from: (a) enforcing those portions of Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C), and any other provisions of the Ohio Revised Code, to deny recognition to valid out-of-state same-sex marriages; (b) denying same-sex couples validly married in other jurisdictions all the rights, protections, and benefits of marriage provided under Ohio law; and/or (c) denying full faith and credit to decrees of adoption duly obtained by same-sex couples in other jurisdictions.
Finally, Defendants are further ORDERED to issue birth certificates to the Plaintiffs for their children listing both same-sex parents.
2

Case: 1:14-cv-00129-TSB Doc #: 29 Filed: 04/14/14 Page: 3 of 3 PAGEID #: 861

IT IS SO ORDERED.1 Date: 4/14/15

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

1 The Court STAYS enforcement of its Order of today (Doc. 28) and this Declaratory Judgment and Permanent Injunction until the parties have briefed whether or not this Court should fully stay its Orders until completion of appeal to the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court. The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the imminent births of their children and other time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth certificates for Plaintiffs’ children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. Nevertheless, Plaintiffs shall file today their memorandum contra Defendants’ oral motion to stay, and Defendants shall file a reply memorandum before 3:00 p.m. tomorrow. The Court shall then rule expeditiously.
3

 
 Case: 1:14-cv-00129-TSB Doc #: 32 Filed: 04/16/14 Page: 1 of 4 PAGEID #: 880

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

BRITTANI HENRY, et al., Plaintiffs,
vs. LANCE HIMES, et al.,
Defendants.

: Case No. 1:14-cv-129 : : : Judge Timothy S. Black : : : : :

ORDER GRANTING IN PART DEFENDANT HIMES’S MOTION FOR STAY OF INJUNCTION PENDING APPEAL

This case is before the Court on Defendant Himes’s oral motion for a stay of the

Court’s final orders pending appeal and the parties’ responsive memoranda.

Both the United States Supreme Court and the United States Court of Appeals for

the Sixth Circuit have recently stayed district court orders enjoining enforcement of state

laws related to same-sex marriage. Herbert v. Kitchen, 134 S. Ct. 893 (2014); Deboer v.

Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014). Most district courts finding state laws

related to same-sex marriage unconstitutional have also stayed their own decisions

pending appeal. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *14

(W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978, at *23

(E.D. Va. Feb 13, 2014); De Leon v. Perry, No. SA-13-CA-00982, 2014 WL 715741, at

*28 (W.D. Tex. Feb. 26, 2014); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252,

1296 (N.D. Okla. 2014).

Case: 1:14-cv-00129-TSB Doc #: 32 Filed: 04/16/14 Page: 2 of 4 PAGEID #: 881
United States Judge John G. Heyburn II’s opinion in Bourke, from which this
Court quoted in reaching its decision on the merits, is particularly instructive. In Bourke,
the court struck down Kentucky’s marriage recognition ban, but granted the defendant’s
request for a stay pending appeal. Id., 2014 WL 556729 at *14. Judge Heyburn noted
that the Supreme Court sent a “strong message” that “cannot be easily ignored” when it granted a stay of the district court’s order in Herbert. Id.1 As Judge Heyburn observed:
“[i]t is best that these momentous changes occur upon full review, rather than risk
premature implementation or confusing changes. That does not serve anyone well.”
Id. This Court agrees.
While this Court believes that Defendant Himes is unlikely to prevail on the merits of his appeal,2 and will not be irreparably harmed by compliance with the requirements of
the United States Constitution, the Court acknowledges that recognition of same-sex
marriages is a hotly contested issue in the contemporary legal landscape, and, if
Defendant Himes’s appeal is ultimately successful, the absence of a stay as to this
1 See also DeLeon, 2014 WL 715741 at *28 (stay issued “in accordance with the Supreme Court’s issuance of a stay in Herbert v. Kitchen”); Bostic, 2014 WL 561978 at *23 (stay issued “in accordance with the Supreme Court’s issuance of a stay in Kitchen v. Herbert”). 2 Since the Supreme Court’s holding in United States v. Windsor, ten out of ten federal trial courts have all declared unconstitutional and enjoined similar bans in states across the country. See, Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013); Obergefell, 962 F. Supp.2d at 997-98 (Ohio); Bishop v. United States ex rel. Holder, 2014 WL 116013, at *33-34 (N.D. Okla. Jan. 14, 2014); Bourke v. Beshear, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014); Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); De Leon v. Perry, 2014 WL 715741, at *1, 24 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, 2014 WL 997525, at *6, 9 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014); Baskin v. Bogan (S.D. Ind. April 10, 2014) (J. Young).
2

Case: 1:14-cv-00129-TSB Doc #: 32 Filed: 04/16/14 Page: 3 of 4 PAGEID #: 882
Court’s ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs. These considerations lead the Court to conclude that the public interest would best be served by the granting of a stay. Premature celebration3 and confusion do not serve anyone’s best interests. The federal appeals courts need to rule, as does the United States Supreme Court.
While “[t]he arc of the moral universe is long, … it [does] bend[] toward justice”4 – albeit slowly, and properly so in this case, so full review can be achieved by our independent branch of government.
The same considerations and costs do not attach to Plaintiffs’ as-applied claims, however, as Plaintiffs have demonstrated that a stay will irreparably harm them individually due to the imminent births of their children and other time-sensitive concerns, (as well as due to the continuing Constitutional violations).
Accordingly, based on the foregoing, Defendant Himes’s motion for a stay pending appeal of the Court’s ruling that Ohio’s marriage recognition bans are facially unconstitutional is hereby GRANTED, but the Court’s Orders as to the as-applied challenges of the eight individual Plaintiffs are NOT STAYED.
Ohio shall issue birth certificates for Plaintiffs’ children which list both lawfully married same-sex spouses as parents.
3 See, e.g., “Columbus gays travel to Chicago to marry,” Columbus Dispatch, Apr. 11, 2014, available at http://www.dispatch.com/content/stories/local/2014/04/11/couples-head-out-to-chicago-to-marry.html (brought to the Court’s attention by the Defendant in its pleading (Doc. 31 at 3)). 4 Martin Luther King, Jr. (March 25, 1965, Montgomery, Alabama)
3

Case: 1:14-cv-00129-TSB Doc #: 32 Filed: 04/16/14 Page: 4 of 4 PAGEID #: 883

IT IS SO ORDERED. Date: 4/16/14

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

4

 
 Case: 1:14-cv-00129-TSB Doc #: 42 Filed: 11/02/15 Page: 1 of 3 PAGEID #: 1059

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRITTANI HENRY, et aL,

Case No. 1:14-cv-129

Plaintiffs, vs.

Judge Timothy S. Black

RICHARD HODGES, et aL,

Defendants.

FINAL JUDGMENT AND DECLARATORY JUDGMENT AND PERMANENT INJUNCTION
On February 10, 2014, 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 who sought to have their child' s birth certificate accurately identify both spouses as their child's legally recognized parents. On April 14, 2014, this Court entered a declaratory judgment and permanent injunction. (Doc. 29). 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 Court of Appeals for the Sixth Circuit. Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Consistent with the Supreme Court's judgment and mandate in Obergefell 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 Ohio Const. Art. XV, §11 and Ohio Rev. Code § 31 01.01(C) (Ohio's "marriage recognition bans") 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

Case: 1:14-cv-00129-TSB Doc #: 42 Filed: 11/02/15 Page: 2 of 3 PAGEID #: 1060
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. The record evidence demonstrates that there is no state interest sufficient to justify denying same-sex married couples the same recognition oftheir existing marriages.
Therefore, this Court hereby DECLARES that those portions of Ohio Const. Art. XV, § 11, Ohio Rev. Code§ 31 01.01(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 to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriages recognized and accepted as legal in Ohio, and to enjoy the rights, protections, and benefits ofmarriage provided to opposite- sex married couples under Ohio law, are denied significant liberty interests and fundamental rights without due process of law and in violation oftheir right to equal protection.
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 Registrar for the City of Cincinnati Health Department, and their officers, agents, and employees, are also PERMANENTLY ENJOINED from: (a) enforcing those portions of Ohio Const. Art. XV, § 11 and Ohio Rev. Code§ 3101.01(C), and any other provisions of the Ohio Revised Code, to deny recognition to valid out-of-state same-sex marriages; (b) denying samesex couples validly married in other jurisdictions all the rights, protections, and benefits of marriage provided under Ohio law; and/or (c) denying full faith and credit to decrees of adoption duly obtained by same-sex couples in other jurisdictions.
2

Case: 1:14-cv-00129-TSB Doc #: 42 Filed: 11/02/15 Page: 3 of 3 PAGEID #: 1061

Defendants are further ORDERED, upon request ofboth parents, to issue birth

certificates to the children of Plaintiffs, and all same-sex couples married in a state where

same-sex marriage was legal before their child was born in Ohio or legally adopted in Ohio,

listing both same-sex parents on their child's birth certificate.

Defendants are further ORDERED to issue forms with instructions on how to complete

the forms for requesting birth certificates for children born or adopted in Ohio. The forms and

instructions should allow both parents to choose their title (mother, father, parent) and their

gender (male, female).

Defendant Hodges has made a good faith effort to reach out to same-sex couples married

out of state who, before the Obergefell decision, requested that both parents be listed on the birth

certificate of a child adopted or born in Ohio and whose request was denied. Defendant Hodges

has notified such parents that, upon their request, an amended birth certificate listing the names

ofboth parents will be issued. Defendant Hodges agrees to make a good faith effort to continue

such notifications to any such parents upon becoming aware that notification was not

accomplished.

Defendant Hodges is further ORDERED in his official capacity to make a good faith

effort to communicate Notice of this Final Order (Doc. 42) to all persons within Ohio who assist

with completing Ohio birth certificates, and he shall evidence such compliance by filing with this

Court a Notice of Compliance by December 1, 2015. The posting ofthis Final Order on the

Ohio Department of Health' s official website shall satisfy this Notice requirement.

IT IS SO ORDERED.
Date: I,/~/lc;;;=
I I

Ti!~~ ~
United States District Judge

3

 
 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, 115 A.F.T.R.2d 2015-2309...

135 S.Ct. 2584 Supreme Court of the United States
James OBERGEFELL, et al., Petitioners v.
Richard HODGES, Director, Ohio Department of Health, et al.;
Valeria Tanco, et al., Petitioners v.
Bill Haslam, Governor of Tennessee, et al.; April DeBoer, et al., Petitioners v.
Rick Snyder, Governor of Michigan, et al.; and Gregory Bourke, et al., Petitioners v.
Steve Beshear, Governor of Kentucky.
Nos. 14–556, 14–562, 14–571, 14–574. |
Argued April 28, 2015. |
Decided June 26, 2015.
Synopsis Background: Same-sex couple brought action alleging that voter-approved Michigan Marriage Amendment (MMA), which prohibited same-sex marriage, violated Equal Protection and Due Process Clauses. The United States District Court for the Eastern District of Michigan, Bernard A. Friedman, J., 973 F.Supp.2d 757, entered judgment in couple’s favor, and state appealed. Same-sex couples married in jurisdictions that provided for such marriages brought actions alleging that Ohio’s ban on same-sex marriages violated Fourteenth Amendment. The United States District Court for the Southern District of Ohio, Timothy S. Black, J., 14 F.Supp.3d 1036, entered judgment in couples’ favor, and state appealed. Same-sex spouses, who entered legal same-sex marriages in Maryland and Delaware, and Ohio funeral director sued Ohio officials responsible for death certificates that denied recognition of spouses’ same-sex legal marriages after death of their partners, seeking declaratory judgment and permanent injunction. The United States District Court for the Southern District of Ohio, Timothy S. Black, J., 962 F.Supp.2d 968, entered judgment in plaintiffs’ favor, and state appealed. Same-sex couples validly married outside Kentucky brought § 1983 actions challenging constitutionality of Kentucky’s marriage-licensing law and denial of recognition for valid same-sex marriages. The United States District Court for the Western District of Kentucky, John G. Heyburn II, J.,

996 F.Supp.2d 542, entered judgment in couples’ favor, and state appealed. Same-sex couples who were legally married in other states before moving to Tennessee brought action challenging constitutionality of Tennessee’s laws that voided and rendered unenforceable in Tennessee any marriage prohibited in state. The United States District Court for the Middle District of Tennessee, Aleta Arthur Trauger, J., 7 F.Supp.3d 759, granted couples’ motion for preliminary injunction, and state appealed. The United States Court of Appeals for the Sixth Circuit, Sutton, Circuit Judge, 772 F.3d 388, reversed. Cases were consolidated and certiorari was granted.
Holdings: The Supreme Court, Justice Kennedy, held 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, overruling Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, and abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859, Adams v. Howerton, 673 F.2d 1036, and other cases, and
States must recognize lawful same-sex marriages performed in other States.
Reversed.
Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Thomas joined.
Justice Scalia filed a dissenting opinion, in which Justice Thomas joined.
Justice Thomas filed a dissenting opinion, in which Justice Scalia joined.
Justice Alito filed a dissenting opinion, in which Justices Scalia and Thomas joined.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
West Codenotes
Held Unconstitutional Ky.Const. § 233A; KRS 402.005, *2588 402.020(1)(d), 402.040(2), 402.045; M.C.L.A. Const. Art. 1, § 25;
1

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, 115 A.F.T.R.2d 2015-2309...

M.C.L.A. §§ 551.1, 551.271, 551.272; Ohio Const. Art. 15, § 11; Ohio R.C. § 3101.01; T.C.A. Const. Art. 11, § 18; T.C.A. § 36-3-113.
Recognized as Unconstitutional 1 U.S.C.A. § 7
Syllabus* 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. 2593 – 2608.
(a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 2593 – 2598.
(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 petitioners’ own experiences. Pp. 2593 – 2595.
(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, 106 S.Ct. 2841, 92 L.Ed.2d 140, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” *2589 Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 2595 – 2598.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 2597 – 2607.
(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, 92 S.Ct. 1029, 31 L.Ed.2d 349; Griswold v. Connecticut, 381 U.S. 479, 484–486, 85 S.Ct. 1678, 14 L.Ed.2d 510. 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, 87 S.Ct. 1817, 18 L.Ed.2d 1010, invalidated bans on interracial unions, and Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, 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, 123 S.Ct. 2472. 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
2

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protected. See, e.g., Eisenstadt, supra, at 453–454, 92 S.Ct. 1029. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 2597 – 2599.
(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, 87 S.Ct. 1817. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. 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, 85 S.Ct. 1678, and was acknowledged in Turner, supra, at 95, 107 S.Ct. 2254. 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, 123 S.Ct. 2472.
*2590 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, 45 S.Ct. 571, 69 L.Ed. 1070. 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 ––––, 133 S.Ct., at 2694–2695. 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.
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, 8

S.Ct. 723, 31 L.Ed. 654. 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. 2598 – 2602.
(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 co-extensive, 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, 98 S.Ct. 673, 54 L.Ed.2d 618, 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 sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U.S. 455, 460–461, 101 S.Ct. 1195, 67 L.Ed.2d 428, and confirmed the relation between liberty and equality, see, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 120–121, 117 S.Ct. 555, 136 L.Ed.2d 473.
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, 123 S.Ct. 2472. 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 *2591 works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 2602 –

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2605.
(4) 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. 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. 2604 – 2605.
(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 same-sex 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. 2605 – 2607.
(c) The Fourteenth Amendment requires States to recognize same-sex 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. 2607 – 2608.
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.
Attorneys and Law Firms
Mary L. Bonauto, for the petitioners.
Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.
John J. Bursch, Grand Rapids, MI, for the respondents.
Douglas Hallward–Driemeier, Washington, DC, for the petitioners.
Susan L. Sommer, M. Currey Cook, Omar Gonzalez–Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY, for Henry Petitioners.
*2592 James D. Esseks, Steven R. Shapiro, Joshua A. Block, Chase B. Strangio, Ria Tabacco Mar, Louise Melling, American Civil Liberties, Union Foundation, New York, NY, for Obergefell Petitioners.
Alphonse A. Gerhardstein, Counsel of Record, Jennifer L. Branch, Jacklyn Gonzales Martin, Adam Gingold Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Jon W. Davidson, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, Camilla B. Taylor, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Ellen Essig Katz, Greenberger & Norton, LLP, Cincinnati, OH, for Henry Petitioners.
Freda J. Levenson, Drew S. Dennis, ACLU of Ohio, Inc., Cleveland, OH, for Obergefell Petitioners.
Lisa T. Meeks, Newman & Meeks Co., LPA, Cincinnati, OH, for All Petitioners.
Michael Dewine, Attorney General of Ohio, Eric E. Murphy, Counsel of Record, State Solicitor, Stephen P. Carney, Peter T. Reed, Deputy Solicitors, Columbus, OH, for Respondent.
Abby R. Rubenfeld, Rubenfeld Law Office, PC, Nashville, TN, William L. Harbison, Phillip F. Cramer, J. Scott Hickman, John L. Farringer, Sherrard & Roe, PLC, Nashville, TN, Maureen T. Holland, Holland & Assoc., PC, Memphis, TN, Regina M. Lambert, Knoxville, TN,
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Douglas Hallward–Driemeier, Counsel of Record, Ropes & Gray LLP, Washington, DC, Christopher Thomas Brown, Justin G. Florence, Ropes & Gray LLP, Boston, MA, Shannon P. Minter, David C. Codell, Christopher F. Stoll, Amy Whelan, Asaf Orr, National Center for Lesbian Rights, San Francisco, CA, Paul S. Kellogg, Ropes & Gray LLP, New York, NY, Samira A. Omerovic, Emerson A. Siegle, John T. Dey, Ropes & Gray LLP, Washington, DC, Joshua E. Goldstein, Ropes & Gray LLP, Boston, MA, for Valeria Tanco, et al., Petitioners.
Herbert H. Slatery III, Attorney General, State of Tennessee, Joseph F. Whalen, Associate Solicitor General, Counsel of Record, Martha A. Campbell, Kevin G. Steiling, Deputy Attorneys General, Alexander S. Rieger, Assistant Attorney General, Office of the Attorney General, Nashville, TN, for William Haslam, et al., Respondents.
Kenneth M. Mogill, Mogill, Posner & Cohen, Lake Orion, MI, Dana M. Nessel, Nessel & Kessel Law, Detroit, MI, Mary L. Bonauto, Gay & Lesbian Advocates & Defenders, Boston, MA, Carole M. Stanyar, Counsel of Record, Ann Arbor, MI, Robert A. Sedler, Wayne State University Law School, Detroit, MI, for April Deboer, et al., Petitioners.
Bill Schuette, Michigan Attorney General, Aaron D. Lindstrom, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, Ann Sherman, Assistant Solicitor General, John J. Bursch, Special Assistant Attorney General, Counsel of Record, Lansing, MI, for Richard Snyder, Governor, State of Michigan, in his official capacity, et al., Respondents.
James D. Esseks, Steven R. Shapiro, Joshua A. Block, Chase B. Strangio, Leslie Cooper, Louise Melling, American Civil Liberties, New York, NY, Jeffrey L. Fisher, Brian Wolfman, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, KY, Daniel J. Canon, Counsel of Record, Laura E. Landenwich, L. Joe Dunman, Clay Daniel Walton Adams, PLC, Louisville, KY, Shannon Fauver, Dawn Elliott, Fauver Law Office, PLLC, Louisville, KY, for Gregory Bourke, et al., and Timothy Love, et al., Petitioners.
*2593 Leigh Gross Latherow, Counsel of Record, William H. Jones, Jr., Gregory L. Monge, VanAntwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, KY, for Steve Beshear, in His Official Capacity as Governor of Kentucky, Respondent.
Opinion

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 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. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (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, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

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faith by reasonable and sincere people here and throughout the world.

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 *2594 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, 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

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 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 state-imposed separation Obergefell deems “hurtful for *2595 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
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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 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. 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. *2596 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 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
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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, 106 S.Ct. 2841, 92 L.Ed.2d 140 (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, 116 S.Ct. 1620, 134 L.Ed.2d 855 (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, 123 S.Ct. 2472, 156 L.Ed.2d 508.
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 *2597 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 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 federal-law 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 same-sex 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. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (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 ––––, 133 S.Ct., at 2689.
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 (C.A.8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage—and most of them, too, have concluded same-sex 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, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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., *2598 Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 484–486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the
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Constitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (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 tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572, 123 S.Ct. 2472. 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, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (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, 98 S.Ct. 673, 54 L.Ed.2d 618 (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, 107 S.Ct. 2254, 96 L.Ed.2d 64 (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, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 639–640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Griswold, supra, at 486, 85 S.Ct. 1678; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (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,

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, 93 S.Ct. 37, 34 L.Ed.2d 65, 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., *2599 Lawrence, 539 U.S., at 574, 123 S.Ct. 2472; Turner, supra, at 95, 107 S.Ct. 2254; Zablocki, supra, at 384, 98 S.Ct. 673; Loving, supra, at 12, 87 S.Ct. 1817; Griswold, supra, at 486, 85 S.Ct. 1678. 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, 92 S.Ct. 1029; Poe, supra, at 542–553, 81 S.Ct. 1752 (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, 87 S.Ct. 1817; see also Zablocki, supra, at 384, 98 S.Ct. 673 (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, 123 S.Ct. 2472. Indeed, the Court has noted it would 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, 98 S.Ct. 673.
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

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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 ––––, 133 S.Ct., at 2693–2695. 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, 87 S.Ct. 1817 (“[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, 85 S.Ct. 1678. 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 projects. Yet it is an association for as noble a purpose *2600 as any involved in our prior decisions.” Id., at 486, 85 S.Ct. 1678.
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, 107 S.Ct. 2254. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ––––, 133 S.Ct., at 2689. 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 same-sex 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, 123 S.Ct. 2472. 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, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer, 262 U.S., at 399, 43 S.Ct. 625. 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, 98 S.Ct. 673 (quoting Meyer, supra, at 399, 43 S.Ct. 625). 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 ––––, 133 S.Ct., at 2694–2695. 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 *2601 here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ––––, 133 S.Ct., at 2694–2695.
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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 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, 8 S.Ct. 723, 31 L.Ed. 654 (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, 8 S.Ct. 723. 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 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 –––– – ––––, 133 S.Ct., at 2690–2691. 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 *2602 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 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, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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
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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, 117 S.Ct. 2258 (Souter, J., concurring in judgment); id., at 789–792, 117 S.Ct. 2258 (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, 87 S.Ct. 1817; Lawrence, 539 U.S., at 566–567, 123 S.Ct. 2472.
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources 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 *2603 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 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. See M.L.B., 519 U.S., at 120–121, 117 S.Ct. 555; id., at 128–129, 117 S.Ct. 555 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct. 2064, 76 L.Ed.2d 221 (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 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, 87 S.Ct. 1817. 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, 98 S.Ct. 673. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383–387, 98 S.Ct. 673, 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 coverture, see supra, at 2595, 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

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husband, except so far as the law recognizes her *2604 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, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980); Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (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, 117 S.Ct. 555. 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, 92 S.Ct. 1029. And in Skinner v. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed sterilization of habitual criminals. See 316 U.S., at 538–543, 62 S.Ct. 1110.
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, 123 S.Ct. 2472. 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, 123 S.Ct. 2472.
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, 98 S.Ct. 673; Skinner, 316 U.S., at 541, 62 S.Ct. 1110.
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 *2605 same-sex couples may exercise the fundamental right to marry. No 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 opposite-sex 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
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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 for resolution as a matter of constitutional law.
Of course, the Constitution contemplates that democracy 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. ––––, 134 S.Ct. 1623, 188 L.Ed.2d 613 (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 –––– – ––––, 134 S.Ct., at 1636–1637. 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 ––––, 134 S.Ct., at 1636. 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 ––––, 134 S.Ct., at 1637. 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 *2606 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, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid. 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 same-sex 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, 106 S.Ct. 2841. 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, 106 S.Ct. 2841 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214, 106 S.Ct. 2841 (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, 123 S.Ct. 2472. 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 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.

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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 *2607 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 (C.A.10 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 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 same-sex 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, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and promote 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 *2608 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.
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It is so ordered.

United States District Court Decisions Adams v. Howerton, 486 F.Supp. 1119 (C.D.Cal.1980)

Appendix A APPENDICES A

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 (M.D.Fla.2005)
Smelt v. County of Orange, 374 F.Supp.2d 861 (C.D.Cal.2005)
Bishop v. Oklahoma ex rel. Edmondson, 447 F.Supp.2d 1239 (N.D.Okla.2006)

State and Federal Judicial Decisions Addressing Same–Sex Marriage
United States Courts of Appeals Decisions Adams v. Howerton, 673 F.2d 1036 (C.A.9 1982) Smelt v. County of Orange, 447 F.3d 673 (C.A.9 2006) Citizens for Equal Protection v. Bruning, 455 F.3d 859 (C.A.8 2006) Windsor v. United States, 699 F.3d 169 (C.A.2 2012) Massachusetts v. Department of Health and Human Services, 682 F.3d 1 (C.A.1 2012) Perry v. Brown, 671 F.3d 1052 (C.A.9 2012) Latta v. Otter, 771 F.3d 456 (C.A.9 2014) Baskin v. Bogan, 766 F.3d 648 (C.A.7 2014) Bishop v. Smith, 760 F.3d 1070 (C.A.10 2014) Bostic v. Schaefer, 760 F.3d 352 (C.A.4 2014) Kitchen v. Herbert, 755 F.3d 1193 (C.A.10 2014) DeBoer v. Snyder, 772 F.3d 388 (C.A.6 2014) Latta v. Otter, 779 F.3d 902 (C.A.9 2015) (O’Scannlain, J., dissenting from the denial of rehearing en banc)

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)
*2609 Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.2010)
Dragovich v. Department of Treasury, 764 F.Supp.2d 1178 (N.D.Cal.2011)
Golinski v. Office of Personnel Management, 824 F.Supp.2d 968 (N.D.Cal.2012)
Dragovich v. Department of Treasury, 872 F.Supp.2d 944 (N.D.Cal.2012)
Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y.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 (M.D.La., Nov. 14, 2013)
Gray v. Orr, 4 F.Supp.3d 984 (N.D.Ill.2013)
Lee v. Orr, 2013 WL 6490577 (N.D.Ill., Dec. 10, 2013)
Kitchen v. Herbert, 961 F.Supp.2d 1181 (Utah 2013)

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Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D.Ohio 2013)
Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D.Okla.2014)
Bourke v. Beshear, 996 F.Supp.2d 542 (W.D.Ky.2014)
Lee v. Orr, 2014 WL 683680 (N.D.Ill., Feb. 21, 2014)

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 (P.R.2014)
Marie v. Moser, 65 F.Supp.3d 1175, 2014 WL 5598128 (Kan., Nov. 4, 2014)

Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014) De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014) Tanco v. Haslam, 7 F.Supp.3d 759 (M.D.Tenn.2014) DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014) Henry v. Himes, 14 F.Supp.3d 1036 (S.D.Ohio 2014) Latta v. Otter, 19 F.Supp.3d 1054 (Idaho 2014) 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 (M.D.Pa.2014) Wolf v. Walker, 986 F.Supp.2d 982 (W.D.Wis.2014) Baskin v. Bogan, 12 F.Supp.3d 1144 (S.D.Ind.2014) Love v. Beshear, 989 F.Supp.2d 536 (W.D.Ky.2014) Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July 23, 2014) Bowling v. Pence, 39 F.Supp.3d 1025 (S.D.Ind.2014) Brenner v. Scott, 999 F.Supp.2d 1278 (N.D.Fla.2014) Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D.La.2014) General Synod of the United Church of Christ v. Resinger, 12 F.Supp.3d 790 (W.D.N.C.2014) Hamby v. Parnell, 56 F.Supp.3d 1056 (Alaska 2014) Fisher–Borne v. Smith, 14 F.Supp.3d 695 (M.D.N.C.2014) Majors v. Horne, 14 F.Supp.3d 1313 (Ariz.2014) Connolly v. Jeanes, ––– F.Supp.3d ––––, 2014 WL

*2610 Lawson v. Kelly, 58 F.Supp.3d 923 (W.D.Mo.2014) McGee v. Cole, 66 F.Supp.3d 747, 2014 WL 5802665 (S.D.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, 64 F.Supp.3d 1260, 2014 WL 6685391 (E.D.Ark., Nov. 25, 2014) Campaign for Southern Equality v. Bryant, 64 F.Supp.3d 906, 2014 WL 6680570 (S.D.Miss., Nov. 25, 2014) Inniss v. Aderhold, ––– F.Supp.3d ––––, 2015 WL 300593 (N.D.Ga., Jan. 8, 2015) Rosenbrahn v. Daugaard, 61 F.Supp.3d 862 (S.D.2015) Caspar v. Snyder, ––– F.Supp.3d ––––, 2015 WL 224741 (E.D.Mich., Jan. 15, 2015) Searcey v. Strange, 2015 U.S. Dist. LEXIS 7776 (S.D.Ala., Jan. 23, 2015) Strawser v. Strange, 44 F.Supp.3d 1206 (S.D.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)
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B 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, 821 N.Y.S.2d 770, 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, 76 Cal.Rptr.3d 683, 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, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009)
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)

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)

*2611 Appendix B

Chief Justice ROBERTS, with whom Justice SCALIA and Justice THOMAS join, dissenting.
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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 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 *2612 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.
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 2598, 2605. 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, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69, 25 S.Ct. 539 (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 2603. 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.
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 2594, I would not “sweep away what has so long been settled” without showing greater respect
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for all that preceded us. Town of Greece v. Galloway, 572 U.S. ––––, ––––, 134 S.Ct. 1811, 1819, 188 L.Ed.2d 835 (2014).
A
As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante, at 2594. 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 2594; 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). *2613 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. ––––, ––––, 133 S.Ct. 2675, 2689, 186 L.Ed.2d 808 (2013).
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 lesbians. 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 a man and a woman.” Ante, at 2595. 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.” *2614 Windsor, 570 U.S., at ––––, 133 S.Ct., at 2691 (quoting In re Burrus, 136 U.S. 586, 593–594, 10 S.Ct. 850, 34 L.Ed. 500 (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 (C.A.6 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
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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 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, 5 S.Ct. 747, 29 L.Ed. 47 (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, 8 S.Ct. 723, 31 L.Ed. 654 (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, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 54 L.Ed.2d 618 (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. Loving, 388 U.S., at 6–7, 87 S.Ct. 1817.
The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 2595. 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 *2615 that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 2595.
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, 93 S.Ct. 37, 34 L.Ed.2d 65 (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 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
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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 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 2599. In reality, however, *2616 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, 25 S.Ct. 539, 49 L.Ed. 937. 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 2594, 2600. 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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934).
Allowing unelected federal judges to select which unenumerated 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, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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, 15 L.Ed. 691 (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
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law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice *2617 Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical 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, 25 S.Ct. 539. 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, 25 S.Ct. 539.
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, 25 S.Ct. 539 (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, 25 S.Ct. 539 (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 embodying them conflict with the Constitution.” Id., at 75–76, 25 S.Ct. 539.
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, 43 S.Ct. 394, 67 L.Ed. 785 (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, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); see Day–Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 96 L.Ed. 469 (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 *2618 with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (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, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Our precedents have required that implied fundamental rights be “objectively, 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, 117 S.Ct. 2258 (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, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009); Flores, 507 U.S., at 303, 113 S.Ct. 1439; United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); see also id., at 544, 97 S.Ct. 1932 (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

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even the design of the Constitution.”); Troxel v. Granville, 530 U.S. 57, 96–101, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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, 117 S.Ct. 2258)).
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 2602. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins, 503 U.S., at 125, 112 S.Ct. 1061, “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, 97 S.Ct. 1932 (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 identifying fundamental rights, ante, at 2597 – 2598, 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, 85 S.Ct. 1678, 14 L.Ed.2d 510 (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 *2619 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 2593 – 2594, 2594, 2595, 2608. 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, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Zablocki, 434 U.S., at 383, 98 S.Ct. 673; see Loving, 388 U.S., at 12, 87 S.Ct. 1817. These cases 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 2636 – 2637, 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 2598.
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 ––––, 133 S.Ct., at 2715 (ALITO, J., dissenting)

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(“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 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 2598. 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, 85 S.Ct. 1678. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485–486, 85 S.Ct. 1678. The Court stressed the invasive nature of the ban, *2620 which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485, 85 S.Ct. 1678. 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, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (internal quotation marks omitted); see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (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, 123 S.Ct. 2472.
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 loneliness” by the laws challenged in these cases—no one. Ante, at 2608. 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, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542, 81 S.Ct. 1752. 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, 81 S.Ct. 1752.
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, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35–37, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); post, at 2635 – 2637 (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.
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 *2621 taken by this Court in Glucksberg. Ante, at 2602 (quoting 521 U.S., at 721, 117 S.Ct. 2258). 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
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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, 25 S.Ct. 539, 49 L.Ed. 937. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 2593. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 2599. 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, 25 S.Ct. 539 (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 2597 – 2598, 2598. 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 2602. 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 adopted in Lochner. See 198 U.S., at 61, 25 S.Ct. 539 (“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 2606. 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. 14–4117 (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,” *2622 ante, at 2599, 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 children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 2600, 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 2604, 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,
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at 2607. 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, 25 S.Ct. 539.
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 *2623 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 2598. 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 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 2603. 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 2603.
The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 2604 – 2605. Yet the majority fails to provide even a single sentence explaining how the Equal 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, 129 S.Ct. 2504, 174 L.Ed.2d 140 (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, 123 S.Ct. 2472 (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
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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 *2624 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, 122 S.Ct. 2528, 153 L.Ed.2d 694 (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 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 2596 – 2597.
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 2597, 2597 – 2598, 2605. 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 2602. 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 2596. 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 unresolved 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. ––––, –––– – ––––, 134 S.Ct. 1623, 1637, 188 L.Ed.2d 613 (2014).
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 same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing *2625 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 2627 (SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding 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
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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 religious practice. The majority’s decision imposing same-sex 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 2607. 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 *2626 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 same-sex marriage. Ante, at 2602 – 2603. 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 2602. 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 definition of marriage—have acted to “lock ... out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 2601 – 2602, 2602 – 2603, 2604, 2606. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 2642 – 2643 (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 2602.
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

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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.
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 *2627 it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. 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 government 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 *2628 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
“[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

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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 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
*2629 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 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 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 *2630 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.
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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 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 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 pop-philosophy; 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.
*2631 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.
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 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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, C.J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U.S. 479, 502, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring

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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 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 *2632 this Court, ante, at 2606, 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.
A
1
As used in the Due Process Clauses, “liberty” most likely

refers to “the power of locomotion, 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, 24 L.Ed. 616 (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 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 locomotion, of changing situation, *2633 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 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

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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, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Indeed, this Court has previously commented, “The conclusion is ... irresistible, that when the same phrase was employed in *2634 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 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, 24 L.Ed. 77 (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 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 *2635 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. 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
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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 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 *2636 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 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, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (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, 87 S.Ct. 1817.5 They *2637 were each sentenced 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, 87 S.Ct. 1817.6 In a similar vein, Zablocki v.
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Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (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, 98 S.Ct. 673; see id., at 377–378, 98 S.Ct. 673. And Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (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, 107 S.Ct. 2254. In none of those cases were individuals denied solely governmental 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 2593. 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 2602,—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, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion), not “Thou shalt provides.”

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 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 *2638 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.

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

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 religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival”
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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 2607. 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 practice.7
*2639 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 2593 – 2594, 2599, 2606, 2608.8 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” 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 *2640 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
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most plausible 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.
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 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.

violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 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 ––––, 133 S.Ct., at 2715 (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 *2641 the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

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. 702, 720–721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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. ––––, ––––, 133 S.Ct. 2675, 2714–2715, 186 L.Ed.2d 808 (2013) (ALITO, J., dissenting). 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

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 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 same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.
This understanding of marriage, which focuses almost
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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 development 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 21st-century America have changed, those States that do not want to *2642 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 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 ––––, 133 S.Ct., at 2715–2716 (dissenting opinion) (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 2598 – 2599. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
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 2606 –
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2607. 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 *2643 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
Footnotes

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 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.
All Citations
135 S.Ct. 2584, 192 L.Ed.2d 609, 99 Empl. Prac. Dec. P 45,341, 115 A.F.T.R.2d 2015-2309, 83 USLW 4592, 2015-1 USTC P 50,357, 15 Cal. Daily Op. Serv. 6817, 2015 Daily Journal D.A.R. 7322, 25 Fla. L. Weekly Fed. S 472

*

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, 26 S.Ct. 282, 50 L.Ed. 499.

1

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

2

Accord, Schuette v. BAMN, 572 U.S. ––––, –––– – ––––, 134 S.Ct. 1623, 1636–1637, 188 L.Ed.2d 613 (2014) (plurality opinion).

3

U.S. Const., Art. I, § 10.

4

Art. IV, § 1.

5

Amdt. 1.

6

Ibid.

7

Amdt. 2.

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8

Amdt. 4.

9

Amdt. 10.

10

United States v. Windsor, 570 U.S. ––––, ––––, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013) (internal quotation marks and

citation omitted).

11

Id., at ––––, 133 S.Ct., at 2691.

12

See Town of Greece v. Galloway, 572 U.S. ––––, –––– – ––––, 134 S.Ct. 1811, 1818–1819, 188 L.Ed.2d 835 (2014).

13

Ante, at 2598.

14

Ante, at 2598.

15

Ibid.

16

Ante, at 2598.

17

Ante, at 2598 – 2602.

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).

20

Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).

21

Windsor, 570 U.S., at ––––, 133 S.Ct., at 2714–2715 (ALITO, J., dissenting).

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 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 2599.

24

Ante, at 2602.

25

Ibid.

* * *

26

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

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 2602. Despite the “synergy” it finds “between th[ese]

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two protections,” ante, at 2603, 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.

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 N.H. Const., pt. I, Art. XV (1784), in 4 id., at

2455.

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, ––– U.S. ––––, 135

S.Ct. 2076, ––– L.Ed.2d ––––, 2015 WL 2473281 (2015) (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.

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 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.

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,

42

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) 99 Empl. Prac. Dec. P 45,341, 192 L.Ed.2d 609, 115 A.F.T.R.2d 2015-2309...

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 2594. 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.

1

I use the phrase “recognize marriage” as shorthand for issuing marriage licenses and conferring those special benefits and

obligations provided under state law for married persons.

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/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.

43

 
 Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 1 of 12
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:14−cv−00129−TSB

CLOSED,LC3

Henry et al v. Himes et al Assigned to: Judge Timothy S. Black related Case: 1:13−cv−00501−TSB
Case in other court: Sixth Circuit Court of Appeals, 14−03464 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/10/2014 Date Terminated: 04/14/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Brittani Henry

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

Ellen Essig 105 E. Fourth St Suite 400 Cincinnati, OH 45202 513−698−9345 Fax: 513−345−2588 Email: ee@kgnlaw.com 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

Marshall Currey Cook Lambda Legal Defense and Education Fund, Inc. 120 Wall Street 19th Floor New York, NY 10005−3919 212−809−8585 x. 241 Fax: 212−809−0055 Email: ccook@lambdalegal.org ATTORNEY TO BE NOTICED

Paul D. Castillo

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 2 of 12

Plaintiff Brittni Rogers
Plaintiff Georgia Nicole Yorksmith

Lambda Legal Defense and Education Fund, Inc. 3500 Oak Lawn Avenue, Ste. 500 Dallas, TX 75219 214−219−8585 Fax: 214−219−4455 Email: pcastillo@lambdalegal.org ATTORNEY TO BE NOTICED
Susan L. Sommer Lambda Legal Defense and Education Fund, Inc. 120 Wall Street 19th Floor New York, NY 10005−3919 212−809−8585 x. 271 Fax: 212−809−0055 Email: ssommer@lambdalegal.org PRO HAC VICE 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
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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address)

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 3 of 12

Plaintiff Pamela Yorksmith

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 4 of 12

Plaintiff Kelly Noe
Plaintiff Kelly McCracken

(See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 5 of 12

Plaintiff Joseph J. Vitale Individually and as Adoptive Parent on behalf of Adopted Child Doe
Plaintiff Robert Talmas Individually and as Adoptive Parent on behalf of Adopted Child Doe

Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address)

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 6 of 12

Plaintiff Adoption S.T.A.R., Inc.

ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED
represented by Alphonse Adam Gerhardstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen Essig (See above for address) 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
Marshall Currey Cook (See above for address) ATTORNEY TO BE NOTICED
Paul D. Castillo (See above for address) ATTORNEY TO BE NOTICED
Susan L. Sommer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lynn Branch (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Theodore E. Wymyslo M.D. TERMINATED: 04/03/2014

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

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 7 of 12

Defendant Camille Jones M.D.
Defendant Lance Himes Director of the Ohio Department of Health

Ryan L. Richardson 2480 Fair Avenue Bexley, OH 43209 513−571−7116 Email: ryan.richardson@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachery Paul Keller Ohio Attorney General Constitutional Offices 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
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
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
represented by Bridget C Coontz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan L. Richardson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachery Paul Keller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/10/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 paid − receipt number: 0648−4439792), filed by Kelly McCracken, Georgia Nicole Yorksmith, Robert Talmas, Brittni Rogers, Joseph J. Vitale, Pamela Yorksmith, Brittani Henry, Adoption S.T.A.R., Inc., Kelly Noe. (Attachments: # 1 Civil Cover Sheet) (Branch, Jennifer)

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 8 of 12

02/10/2014 02/10/2014 02/10/2014
02/10/2014 02/10/2014 02/10/2014
02/11/2014 02/11/2014 02/11/2014
02/12/2014

Modified to correct docket text on 2/11/2014 (sct1). (Entered: 02/10/2014)
2 NOTICE of Appearance by Jacklyn Gonzales Martin for Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith (Martin, Jacklyn) Modified to correct docket text on 2/11/2014 (sct1). (Entered: 02/10/2014)
3 NOTICE of Appearance by Alphonse Adam Gerhardstein for Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith (Gerhardstein, Alphonse) Modified to correct docket text on 2/11/2014 (sct1). (Entered: 02/10/2014)
4 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Exhibit 1 Proposed Order on Motion on TRO, # 2 Affidavit Brittni Rogers Signed Declaration, # 3 Affidavit Yorksmith Signed Declaration, # 4 Affidavit Noe Signed Declaration, # 5 Affidavit Vitale Signed Declaration, # 6 Affidavit Ginn Signed Declaration, # 7 Affidavit Singer Signed Declaration, # 8 Affidavit Seay Signed Declaration) (Gerhardstein, Alphonse). Added MOTION for Preliminary Injunction on 2/10/2014 (sct1). Modified to correct docket text on 2/11/2014 (sct1). (Entered: 02/10/2014)
Notice of Correction re 4 MOTION for Temporary Restraining Order: Document also included a Motion for Preliminary Injunction which was not filed. Clerk corrected docket entry to add the preliminary injunction motion relief. (sct1) (Entered: 02/10/2014)
5 NOTICE of Appearance by Lisa Talmadge Meeks for Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith (Meeks, Lisa) Modified to correct docket text on 2/11/2014 (sct1). (Entered: 02/10/2014)
Notice of Hearing: Pursuant to S.D. Ohio Civ. R. 65.1, this civil action is set for an informal preliminary telephone conference on Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. 4) on 2/11/14 at 2:00 p.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 the responsibility of Plaintiffs' counsel to ensure that defense counsel is aware of the time, date, and call−in information for the conference. (sct1) (Entered: 02/10/2014)
***If this case is referred, it will be to Magistrate Judge Stephanie K. Bowman. (sct1) (Entered: 02/11/2014)
Notice of Correction: Case opened with Adopted Child Doe as an individual party. Clerk corrected the parties and docket sheet to conform with the party naming standards guide for ECF by adding the Adopted Child Doe as an alias to Plaintiffs Vitale and Talmas. (sct1) (Entered: 02/11/2014)
Minute Entry and Notation Order: Pursuant to S.D. Civ. R. 65.1, this civil action came on before the Court for an informal preliminary telephone conference on 2/11/14 at 2:00 p.m. regarding Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction. (Doc. 4 ). Attorneys Alphonse Gerhardstein, Jacklyn Martin, Bridget Coontz, Ryan Richardson, and Aaron Herzig participated. Defense counsel agreed to accept service on behalf of the Defendants. Counsel agreed to meet and confer and jointly email chambers (black_chambers@ohsd.uscourts.gov) a proposed briefing schedule by noon on 2/12/14. IT IS SO ORDERED. (Court Reporter Luke Lavin (Official).) (mr1) (Entered: 02/11/2014)
6 BRIEFING SCHEDULE: Answers: 2/25/2014. Fact stipulations and additional declarations: 2/28/2014. Plaintiff's motion for permanent injunction: 2/28/2014. Defendants' memoranda contra: 3/19/2014. Plaintiffs' reply memorandum: 4/1/2014. Oral argument on motion for permanent injunction in Cincinnati Courtroom #3, Room 836: 4/4/2014 at 10:00 a.m. Signed by Judge Timothy S. Black on 2/12/2014. (mr1) (Entered: 02/12/2014)

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 9 of 12

02/13/2014 02/13/2014 02/13/2014 02/18/2014
02/19/2014 02/21/2014
02/25/2014
02/25/2014
02/25/2014 02/25/2014 02/26/2014 02/28/2014
02/28/2014
02/28/2014

7 NOTICE of Appearance by Ryan L. Richardson for Defendant Theodore E. Wymyslo (Richardson, Ryan) (Entered: 02/13/2014)
8 NOTICE of Appearance by Bridget C Coontz for Defendant Theodore E. Wymyslo (Coontz, Bridget) (Entered: 02/13/2014)
9 NOTICE of Appearance by Zachery Paul Keller for Defendant Theodore E. Wymyslo (Keller, Zachery) (Entered: 02/13/2014)
10 MOTION for Leave to Appear Pro Hac Vice of Ellen Essig (Filing fee $ 200, receipt number 0648−4451629) by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Certificate of Good Standing, # 2 Affirmation) (Gerhardstein, Alphonse) (Entered: 02/18/2014)
11 NOTICE of Appearance by Aaron Mark Herzig for Defendant Camille Jones (Herzig, Aaron) (Entered: 02/19/2014)
NOTATION ORDER: This civil action is before the Court on Plaintiffs' motion for pro hac vice admission (Doc. 10 ). Ellen Essig is already admitted in the Southern District of Ohio. Accordingly, the motion is TERMINATED as MOOT and the filing fee of $200 shall be refunded. IT IS SO ORDERED by Judge Timothy S. Black on 2/21/2014. (mr1) (Entered: 02/21/2014)
12 MOTION for Leave to Appear Pro Hac Vice of Susan L. Sommer (Filing fee $ 200, receipt number 0648−4460155) by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Exhibit A) (Gerhardstein, Alphonse) (Entered: 02/25/2014)
13 MOTION for Leave to Appear Pro Hac Vice of Marshall Currey Cook (Filing fee $ 200, receipt number 0648−4460166) by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Exhibit A) (Gerhardstein, Alphonse) (Entered: 02/25/2014)
14 NOTICE of Appearance by Paul D. Castillo for Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith (Castillo, Paul) (Entered: 02/25/2014)
15 ANSWER to 1 Complaint, filed by Theodore E. Wymyslo. (Richardson, Ryan) (Entered: 02/25/2014)
16 ORDER granting 12 Motion for Leave to Appear Pro Hac Vice of Susan L. Sommer; granting 13 Motion for Leave to Appear Pro Hac Vice of Marshall Currey Cook. Signed by Judge Timothy S. Black on 2/26/2014. (mr1) (Entered: 02/26/2014)
17 NOTICE of Filing Declaration of Alphonse A. Gerhardstein by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith (Attachments: # 1 Declaration of Alphonse A. Gerhardstein, # 2 Ex. A−Redacted Order of Adoption, # 3 Ex. B−Becker Declaration, # 4 Ex. C−Chauncey Declaration, # 5 Ex. D−Fulcher Declaration, # 6 Ex. E−Grossman Declaration, # 7 Ex. F−McKay Declaration, # 8 Ex. G−Peplau Declaration, # 9 Ex. H−Segura Declaration) (Gerhardstein, Alphonse) Modified on 2/28/2014 (mr1). (Entered: 02/28/2014)
18 MOTION for Permanent Injunction and Declaratory Judgment by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. Responses due by 3/19/2014 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order) (Gerhardstein, Alphonse) (Entered: 02/28/2014)
19 STIPULATIONS (s) by All Parties by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith, Defendants Theodore Wymyslo, Camille Jones. (Attachments: # 1 A−1 Worksheet, # 2 A−2 Flow Sheet, # 3 A−3 Flow Sheet, # 4 A−4 Sample Record) (Gerhardstein, Alphonse) Modified to include all filers

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 10 of 12

03/19/2014 03/20/2014 03/20/2014 03/20/2014 03/21/2014 03/31/2014 04/01/2014
04/01/2014 04/01/2014
04/03/2014 04/04/2014
04/04/2014

on 3/3/2014 (eh1). (Entered: 02/28/2014)
20 RESPONSE in Opposition re 18 MOTION for Permanent Injunction and Declaratory Judgment filed by Defendant Theodore E. Wymyslo. (Richardson, Ryan) (Entered: 03/19/2014)
21 WAIVER OF SERVICE Returned Executed. Waiver sent to Theodore E. Wymyslo on 2/10/2014, answer due 4/11/2014. (Martin, Jacklyn) (Entered: 03/20/2014)
22 WAIVER OF SERVICE Returned Executed. Waiver sent to Camille Jones on 2/10/2014, answer due 4/11/2014. (Martin, Jacklyn) (Entered: 03/20/2014)
NOTATION ORDER: Given the parties' agreement to proceed directly to final disposition of this action, Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. 4 ) is hereby TERMINATED as MOOT. IT IS SO ORDERED by Judge Timothy S. Black on 3/20/2014. (mr1) (Entered: 03/20/2014)
23 NOTICE of Appearance by Peter J Stackpole for Defendant Camille Jones (Stackpole, Peter) (Entered: 03/21/2014)
NOTICE of Hearing: The Oral argument on motion for permanent injunction set for 4/4/2014 at 10:00 a.m. HAS A LOCATION CHANGE to Cincinnati Courtroom 1 (Room 805) before Judge Timothy S. Black. (mr1) (Entered: 03/31/2014)
24 *PLEASE DISREGARD THIS DOCUMENT WAS FILED IN ERROR* REPLY to Response to Motion re 18 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Exhibit A. Chart of Harm Suffered by Plaintiffs, # 2 Exhibit B. Unpublished Case) (Gerhardstein, Alphonse) Modified to change security to court users only on 4/1/2014 (jlw1). (Entered: 04/01/2014)
Notice of Correction re: 24 Reply to Response to Motion. This document was restricted at request of counsel as it was an incorrect PDF. Counsel will refile and security was changed re 24 to court users only. (jlw1) (Entered: 04/01/2014)
25 REPLY to Response to Motion re 18 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Attachments: # 1 Exhibit A. Chart of Harm Suffered by Plaintiffs, # 2 Exhibit B. Unpublished Case) (Gerhardstein, Alphonse) (Entered: 04/01/2014)
26 NOTICE by Defendant Theodore E. Wymyslo Substitution of Party (Richardson, Ryan) (Entered: 04/03/2014)
Minute entry: This civil action came on before the Court on oral argument on Plaintiffs' Motion for Permanent Injunction and Declaratory Judgment (Doc. 18) on 4/4/2014 at 10:00 a.m. Attorneys Al Gerhardstein, Susan Sommer, Ellen Essig, Lisa Meeks, and Adam Gerhardstein appeared with Plaintiffs Brittani Henry, Brittni Rogers, Georgia Nicole Yorksmith, Pamela Yorksmith, Kelly Noe, Kelly McCracken, Joseph Vitale, and Robert Talmas. Attorneys Ryan Richardson, Bridget Coontz, and Zachery Keller appeared on behalf of Defendant Wymyslo. Attorney Peter Stackpole appeared on behalf of Defendant Jones. Arguments were presented to the Court. A written decision will issue on or before 4/14/14. The Court anticipates striking down as unconstitutional under all circumstances Ohio's bans on recognizing legal same−sex marriages from other states. (Court Reporter Jodie Perkins (Official).) (mr1) (Entered: 04/04/2014)
27 Transcript of Proceedings (Excerpt of Proceeding − Motion for Permanent Injunction and Declaratory Judgment) held on Friday, April 4, 2014, before Judge Timothy S. Black. 5 pages. Court Reporter/Transcriber Jodie Perkins (Official), Telephone number 513−564−7676. 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.

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 11 of 12

04/14/2014 04/14/2014 04/14/2014 04/15/2014 04/16/2014 05/09/2014 05/12/2014 05/23/2014
07/30/2015 07/30/2015

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 4/25/2014. Redacted Transcript Deadline set for 5/5/2014. Release of Transcript Restriction set for 7/3/2014. (mr1) (Entered: 04/04/2014)
28 ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 4/14/2014. (mr1) (Entered: 04/14/2014)
29 DECLARATORY JUDGMENT AND PERMANENT INJUNCTION affirming ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION 28 . Signed by Judge Timothy S. Black on 4/14/2014. (mr1) (Entered: 04/14/2014)
30 Response to Defendants' Oral Motion to Stay the Court's Order by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Branch, Jennifer) (Entered: 04/14/2014)
31 MOTION FOR STAY OF THE COURT'S PERMANENT INJUNCTION (DOC. NO. 29 PENDING APPEAL by Defendant Lance Himes. (Richardson, Ryan) Modified text to reflect pleading title on 4/16/2014 (mr1). (Entered: 04/15/2014)
32 ORDER GRANTING IN PART DEFENDANT HIMES'S MOTION FOR STAY OF INJUNCTION PENDING APPEAL. Signed by Judge Timothy S. Black on 4/16/2014. (mr1) (Entered: 04/16/2014)
33 NOTICE OF APPEAL as to 29 Judgment, Permanent Injunction, 28 Order on Motion for Permanent Injunction by Defendant Lance Himes. Filing fee $ 505, receipt number 0648−4558764. (Richardson, Ryan) (Entered: 05/09/2014)
USCA Case Number 14−3464 for 33 Notice of Appeal filed by Lance Himes. Case Manager − Cheryl Borkowski. (sct) (Entered: 07/31/2015)
34 Transcript of Proceedings (Motion for Permanent Injunction and Declaratory Judgment) held on Friday, April 4, 2014, before Judge Timothy S. Black. 75 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 6/13/2014. Redacted Transcript Deadline set for 6/23/2014. Release of Transcript Restriction set for 8/21/2014. (mr1) (Entered: 05/23/2014)
35 Joint MOTION Setting Deadline for Plaintiffs' to File Their Motion for Attorneys' Fees on September 11, 2015 by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. (Branch, Jennifer) (Entered: 07/30/2015)
36 NOTICE by Plaintiffs Adoption S.T.A.R., Inc., Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith of Withdrawal of Co−Counsel Jacklyn Gonzales Martin (Martin, Jacklyn) (Entered: 07/30/2015)

Case: 1:14-cv-129 As of: 12/02/2019 04:31 PM EST 12 of 12

07/31/2015 08/17/2015 08/17/2015 08/18/2015 08/18/2015
09/11/2015 09/15/2015 09/24/2015
10/15/2015
11/02/2015

37 USCA OPINION AND JUDGMENT as to 33 Notice of Appeal filed by Lance Himes reversing the judgment of the district court. (Filed in USCA on 11/6/14) Note: Mandate to issue. (sct) (Entered: 07/31/2015)
38 ORDER of USCA as to 33 Notice of Appeal filed by Lance Himes 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)
39 MANDATE of USCA as to 33 Notice of Appeal filed by Lance Himes. (sct) (Entered: 08/17/2015)
40 ORDER LIFTING THE STAY ENTERED ON APRIL 16, 2014 (Doc. 32 ). Signed by Judge Timothy S. Black on 8/18/2015. (mr) (Entered: 08/18/2015)
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. 35 ). For good cause shown, the agreed motion (Doc. 35 ) is GRANTED. Plaintiffs shall file their supplemental motion for attorneys' fees and expenses on or before 9/11/15. IT IS SO ORDERED by Judge Timothy S. Black on 8/18/2015. (mr) (Entered: 08/18/2015)
41 MOTION for Attorney Fees by Plaintiffs Brittani Henry, Kelly McCracken, Kelly Noe, Brittni Rogers, Robert Talmas, Joseph J. Vitale, Georgia Nicole Yorksmith, Pamela Yorksmith. Responses due by 10/5/2015 (Branch, Jennifer) (Entered: 09/11/2015)
NOTICE of Hearing: This civil action, along with related Case No. 1:13−cv−501, 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. 1:13−cv−501, 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, 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. 41 ) 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. 41 ) is hereby STAYED through 10/15/15. This civil action, along with related Case No. 1:13−cv−501, 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)
Minute Entry: This civil action, along with related Case No. 1:13−cv−501, 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)
42 FINAL JUDGMENT AND DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 11/2/2015. (mr) (Entered: 11/02/2015)

 
 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

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.

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

Page 3

_________________
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,

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

Page 4

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,

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

Page 5

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,

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

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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

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

Page 7

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.
_________________

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.

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

Page 8

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.