[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Stolz v. J & B Steel Erectors, Inc., Slip Opinion No. 2018-Ohio-5088.]

NOTICE This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2018-O HIO -5088
S TOLZ v . J & B S TEEL E RECTORS , I NC ., ET AL . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Stolz v. J & B Steel Erectors, Inc., Slip Opinion No. 2018-Ohio-5088.] Workers’ compensation—Immunity from tort claims—Self-insured construction projects—R.C. 4123.35(O)—R.C. 4123.35(O)’s grant of immunity to
subcontractors enrolled in a contractor ’s self-insurance plan from claims by employees of another enrolled subc ontractor does not violate right-toremedy, right-to-jury, or equal-protec tion provisions of Ohio Constitution. (No. 2017-1245—Submitted May 8, 2018—Decided December 20, 2018.)
O N O RDER from the United States District Cour t for the Southern District of Ohio, Western Division, Certifying a Questi on of State Law, No. 1:14-cv-44.

_________________ D E W INE , J. {¶ 1} Ohio law allows a general contractor on certain large construction projects to “self-insure” and provide workers’ compensation coverage for its ownS UPREME C OURT OF O HIO

2 employees and for the employees of subcontractors that enroll in the contractor’s self-insurance program. An employee w ho is injured on the job may not pursue a negligence claim against the general contr actor or an enrolled subcontractor but must instead seek compensation pursuant to Ohio’s workers’ compensation laws. In this case, which comes to us by way of a certified question from the United States District Court, we consider whether this scheme violates certain provisions of the
Ohio Constitution. We conclude that it does not. I. Background {¶ 2} This is the second time in the same federal lawsuit we have been called upon to answer a question about th e contractor-self-ins urance program. See Stolz v. J & B Steel Erectors, Inc. , 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, ¶ 3-8 (“ Stolz I ”). The district-court case arose from a workplace accident that occurred during construction of the Horses hoe Casino in Cincinnati. Daniel Stolz was injured when a floor upon which he was working collapsed, causing him to fall some 25 feet. Stolz was employed as a c oncrete finisher for Jostin Construction, Inc. (“Jostin”). And Jostin was a subc ontractor of Messer Construction Company (“Messer”), the general contractor for the project. {¶ 3} Prior to the start of construction, Messer received permission from the Ohio Bureau of Workers’ Compensation to act as the self-insuring employer on the project under R.C. 4123.35(O). Under th e statute, Messer provided workers’ compensation coverage on the project for its own employees as well as theemployees of subcontractors like Jostin that chose to enroll in Messer’s selfinsurance plan (“enrolled subcontractors”). {¶ 4} After he was injured, Stolz su ed Messer and several of the subcontractors for negligence. Messer and three of the enrolled subcontractors moved for summary judgment on the grounds that they are immune from liability under R.C. 4123.35(O)’s provisions concer ning contractor self-insurance.January Term, 2018

3 {¶ 5} The district court granted summary judgment to Messer, as the general contractor, but refused to exte nd immunity to the subcontractors. Following summary judgment, we accepted our first certified question of state law from the federal court. That ques tion asked whether R.C. 4123.35 and 4123.74 provide immunity to enrolled subcontr actors from tort claims brought by employees of other enrolled subcontractors. Stolz I , 146 Ohio St.3d 281, 2016- Ohio-1567, 55 N.E.3d 1082, at ¶ 8. We answered the question in the affirmative, concluding that the statutes “create a legal fiction that a self-insuring employer for a self-insured construction project is the single employer, for workers’ compensation purposes, of all employees working for enrolled subcontractors on that project.” Id. at ¶ 27. {¶ 6} Back before the district court, St olz amended his complaint to allege that R.C. 4123.35(O) violates various provi sions of the United States and Ohio Constitutions. Once more, the enrolled subcontractors petitioned the district court to certify a question of state law to this court. Again, we accepted. The question
is:

“Whether Ohio [R.C.] 4123.35(O) is unconstitutional as applied to
the tort claims of an enrolled subcontractor’s employee who is injured while working on a self-i nsured construction project and whose injury is compensable under Ohio’s workers’ compensation
laws.”

(Brackets sic.) 151 Ohio St.3d 1451, 2017-Ohio-8842, 87 N.E.3d 220, quoting the
district court’s certification order. II. Ohio’s Workers’ Compensation System and R.C. 4123.35(O) {¶ 7} The Ohio Constitution authorizes the legislature to establish a state fund for the purpose of “providing compen sation to workmen and their dependents,S UPREME C OURT OF O HIO

4 for death, injuries or occupational diseas e, occasioned in the course of such workmen’s employment” and to require “compulsory contribution thereto” from employers. Ohio Constitution, Article II, Section 35. An employer that “pays the premium or compensation provided by law * * * shall not be liable to respond in damages at common law or by statute fo r such death, injuries or occupational
disease.” Id. {¶ 8} The legislature established the Ohio workers’ compensation system under this authority. See R.C. Chapter 4123. Most employers participate in the system by paying premiums into a state insurance fund that administers and pays out claims. R.C. 4123.35(A). The scheme also allows certain employers who possess “sufficient financial and administrative ability” to self-insure their workers’ compensation obligations. R.C. 4123.35(B). These “self-insuring employer[s]” have the same immunity from liability as other employers but pay claims directly to injured employees and the dependents of deceased employees. Id

. {¶ 9} R.C. 4123.35(O) takes the self-insurance principle a step further. Itallows the administrator of the workers’ compensation system to grant a selfinsuring employer the privilege of self-ins uring certain large construction projects. The self-insuring employer may administer workers’ compensation claims not only for its own employees but also for the em ployees of subcontractors enrolled in the plan. R.C. 4123.35(O). In return, the se lf-insuring employer gains protection against claims by its own employees as well as the claims of employees of enrolled
subcontractors. Id. And as we explained in Stolz I , an enrolled subcontractor also receives protection against claims by employees of another enrolled subcontractor. 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, at ¶ 27. The question now before us is whether this grant of imm unity to enrolled subcontractors violates certain provisions of the Ohio Constitution.January Term, 2018

5 III. Stolz’s Constitutional Claims {¶ 10} In his amended complaint, St olz alleged that R.C. 4123.35(O) violates various provisions of the state and federal Constitutions. The question certified by the district court does not dist inguish between Stolz’s federal and state claims. We answer certified questions of “Ohio law,” S.Ct.Prac.R. 9.01(A), and thus we will limit our analysis to Stolz’s claims under the Ohio Constitution. {¶ 11} Stolz alleged violations of seven provisions of the Ohio Constitution. But in his briefing before this court, Stolz argues only that R.C. 4123.35(O) violates the due-process and equal-protection guaran tees of the Ohio Constitution. Within these arguments, he contends that R.C. 4123.35(O) infringes upon fundamental rights protected by the right-to-jury and right-to-remedy provisions of the Ohio
Constitution. Because he has not raised any arguments concerning the other provisions of the Ohio Constitution referred to in his amended complaint, we deem
such claims to be abandoned. See Household Fin. Corp. v. Porterfield , 24 Ohio St.2d 39, 46, 263 N.E.2d 243 (1970). As to the constitutional claims that Stolz does raise, we conclude that neither has merit. A. Due Course of Law {¶ 12} Stolz first argues that R.C. 4123.35(O)’s grant of immunity to enrolled subcontractors violates his rights to due process under Article I, Section
16 of the Ohio Constitution. That section provides, “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, a nd shall have justice administered without denial or delay.” Under a plain reading, the constitutional provision does not speak to “due process” at all but, rather, to an individual’s right to access the court system and to seek a remedy. For many years, however, we have treated the provision as equivalent to the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. See Wilson v. Zanesville , 130 Ohio St. 286, 289-290, 199 N.E. 187 (1935), overruled in part on other grounds
, Cincinnati v. Correll , 141 Ohio St.S UPREME C OURT OF O HIO

6 535, 49 N.E.2d 412 (1943); Adler v. Whitbeck , 44 Ohio St. 539, 568-569, 9 N.E. 672 (1887). No party has asked us to do otherwise today. {¶ 13} Stolz primarily argues that R.C. 4123.35(O) violates his rights to substantive due process. While the Due Process Clause of the Fourteenth Amendment on its face would seem to be concerned with only the adequacy of procedures employed when one is deprived of life, liberty, or property, the United States Supreme Court has read it to incl ude a substantive component that forbids some government actions “r egardless of the fairness of the procedures used to implement them,” Daniels v. Williams , 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). We have also recogniz ed substantive-due-process protections
under the Ohio Constitution. See Arbino v. Johnson & Johnson
, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 48-49. {¶ 14} In a substantive-due-process challeng e, “[t]he first (and often last) issue * * * is the proper characterization of the individual’s asserted right.” Blau
v. Fort Thomas Pub. School Dist. , 401 F.3d 381, 393 (6th Cir.2005), citing Reno v.
Flores , 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Government actions that infringe upon a fundamental righ t are subject to strict scrutiny, while those that do not need only be rationally related to a legitimate government interest.
State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18. {¶ 15} Stolz contends that R.C. 4123.35(O) violates two fundamental rights guaranteed by the Ohio Constitution: the right to a jury trial and the right to a remedy. We may quickly dispose of the argument that R.C. 4123.35(O) infringes upon Stolz’s right to a jury trial. The ju ry-trial guarantee extends to those civil cases in which the right existed at the time of the adoption of the Ohio Constitution. Belding v. State ex rel. Heifner , 121 Ohio St. 393, 169 N.E. 301 (1929), paragraph one of the syllabus; Arrington v. DaimlerChrysler Corp. , 109 Ohio St.3d 539, 2006- Ohio-3257, 849 N.E.2d 1004, ¶ 22. The jury-trial guarantee does not, however, prohibit the legislature from alteri ng a common-law cause of action. Stetter v. R.J.January Term, 2018

7 Corman Derailment Servs., L.L.C. , 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 64. Rather, the legislature ma y “ ‘alter, revise, modify, or abolish the common law as it may determine necessary or advisable for the common good.’ ” Id ., quoting Arbino at ¶ 131 (Cupp, J., concurring). {¶ 16} In Arrington , we held that the constitutional right to a jury trial does not extend to a worker seeking to participate in the workers’ compensation fund. Arrington at ¶ 26-27. We explained that “t he statutory workers’ compensation scheme was intended as a replacement fo r the void of common-law remedies for workers injured on the job.” Id . at ¶ 24. Because the act “ ‘abolishes all right of recovery in ordinary cases,’ ” it “ ‘leav es nothing to be tried by jury.’ ” Id ., quoting Mountain Timber Co. v. Washington , 243 U.S. 219, 235, 37 S.Ct. 260, 61 L.Ed.2d 685 (1917). In enacting R.C. 4123.35(O), th e General Assembly exercised its constitutional authority to abolish an employee’s right to recover in tort from an enrolled subcontractor and replaced it with a right to recover through the workers’ compensation laws. Thus, like the employee in Arrington , Stolz has no constitutional right to a jury trial for his workplace-injury claim. {¶ 17} We also reject Stolz’s argument that R.C. 4123.35(O) infringes upon his right under Article I, Section 16 to a “r emedy by due course of law.” We have held that “the right-to-remedy provision a pplies only to existing, vested rights and that the legislature determines what injuries are recognized and what remedies are
available.” Ruther v. Kaiser , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 13. To violate the guaran tee, a statute must be a “serious infringement of a clearly preexisting right to bring suit.” Fabrey v. McDonald Village Police Dept.
, 70 Ohio St.3d 351, 355, 639 N.E.2d 31 (1994). {¶ 18} In Stetter , we considered an intentional-tort statute that limited an employee’s ability to recover in tort from his employer to situations in which the employee could show that the employer acted with a deliberate intent to injure;
claimants who could not meet this st andard could receive compensation onlyS UPREME C OURT OF O HIO

8 through the workers’ compensation system. 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 44, 60. Under the prior version of the statute, an employee could recover for an intentional tort by showing that an injury was substantially certain to result from the employer’s conduct. Id. at ¶ 27. We concluded that even though the new statute removed a tort remedy that had previously existed, it did not violate the right-to-remedy provision. Id. at ¶ 60. We explained that the workers’ compensation system provided meaningful remedies for employees who had been injured by an intentional tort as defined by the statute. Id. Further, we held that in enacting the statute in question, the Genera l Assembly acted pursuant to its power to modify common-law causes of action. Id. Similar considerations apply here: in enacting R.C. 4123.35(O), the legislature ex ercised its authority to modify an employee’s cause of action against enrolle d subcontractors, and Stolz and injured workers like him may obtain an adequate remedy through the workers’ compensation system. {¶ 19} Thus, we reject Stolz’s claim that R.C. 4123.35(O) violates the jurytrial and right-to-remedy guarantees of the Ohio Constitution. Because Stolz has not shown that the statute infringes upon a fundamental right, we apply rationalbasis review to his claim. Under rati onal-basis review, we will uphold the statute as long as it is rationally related to a legitimate govern ment interest. Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 66. We grant “substantial deference” to the General Assembly’s predictive judgment in making that
determination. State v. Williams , 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000). {¶ 20} Ohio’s workers’ compensation system is the “result of a unique compromise between employees and employers, in which employees give up their common-law remedy and accept possibly lower monetary recovery, but with greater assurance that they will receive r easonable compensation for their injury.”
Stetter at ¶ 54. In recognition of this comp romise, we have upheld various aspects of the workers’ compensation system in the face of due-process challenges. InJanuary Term, 2018

9 Kaiser v. Strall , 5 Ohio St.3d 91, 93-94, 449 N.E.2d 1 (1983), we held that a workers’ compensation statute that bars an injured worker from pursuing a tort claim against a fellow employee does not violate the injured worker’s due-process rights. We found the contention that the scheme was unconstitutional to be “particularly mystifying, given the fact that its very adoption would abrogate” the provision of the Ohio Constitution authorizing the creation of the workers’ compensation fund. Id. at 93, citing Ohio Constitution, Article II, Section 35. {¶ 21} Similarly, in Stetter , we looked to the underlying purposes of the workers’ compensation system in uphol ding a statutory restriction on an employee’s ability to sue his employer for an intentional tort. 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 74-76. We explained that one primary rationale undergirding the statutory compromise was to “ ‘minimize litigation, even litigation of undoubted merit.’ ” Id . at ¶ 74, quoting 6 Larson, Workers’ Compensation Law , Section 103.03 (2008). {¶ 22} R.C. 4123.35(O) furthers the purposes of the workers’ compensation system by putting a project with a general contractor and multiple subcontractors on the same footing as a large constr uction project undertaken by a single contractor. By extending immunity to enrolled subcontractors, R.C. 4123.35(O) encourages subcontractors to engage in la rge-scale construction projects they might otherwise shy away from because of concer ns about accident-related litigation. In addition, it provides a quicker, and more certain, means of recourse for injured employees. Thus, we have little difficulty concluding that the legislature acted with a rational basis in enacting R.C. 4123.35(O). We therefore reject Stolz’s substantive-due-process challenge. {¶ 23} Stolz also presents what he characterizes as a procedural-dueprocess claim. He says that employee s “were not reasonably put on notice by the language of the statute that they would be deprived of their rights to a jury trial and remedy as to non-employer, third-party cont ractors.” In essence, his argument isS UPREME C OURT OF O HIO

10 that his procedural-due-process rights we re violated because he could not have anticipated our decision in Stolz I interpreting R.C. 4123.35(O) as barring an employee’s claim against an enrolled subcontractor. {¶ 24} A procedural-due-process claim challenges the adequacy of the procedures employed when the government deprives a person of life, liberty, or property. Ferguson v. State , 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250, ¶ 42. Here, Stolz is not challenging the procedural adequacy of a governmental action but, rather, expressing a substa ntive disagreement with this court’s construction of the statute. Because his challenge is not to the adequacy of procedures employed by the government in depriving him of life, liberty, or property, he does not assert a procedural-due-process violation. B. Equal Protection {¶ 25} Article I, Section 2 of the Ohio Constitution provides: “All political power is inherent in the people. Government is instituted for their equal protection
and benefit * * *.” Stolz claims that his equal-protection rights are infringed upon because he is treated differently than a wo rker who is “on a traditional, state-funded project that does not take advantage of R.C. 4123.35’s self-insured provision.” {¶ 26} Our analysis of Stolz’s substantive-due-process claim gives away the ending as to his equal-protection cl aim. When—as here—a statute does not infringe upon a fundamental right or invol ve a suspect classification, it will be upheld as long as it is rationally relate d to a legitimate gove rnment interest. Ferguson at ¶ 31. As we explained in the due-process section of our analysis, the classification rationally advances a legitimate government interest by extending the limitations on damages provided for in the workers’ compensation system to
enrolled subcontractors in la rge construction projects. In addition, it advances the government’s interest in allowing injured workers a certain, and prompt, mechanism for the payment of benefits. Because R.C. 4123.35(O) satisfiesJanuary Term, 2018

11 rational-basis review, it does not violate the Equal Pr otection Clause of the Ohio
Constitution.
IV. Conclusion {¶ 27} The United States District Court fo r the Southern District of Ohio asked a question of state law as to wh ether R.C. 4123.35(O) is “unconstitutional as applied to the tort claims of an enrolle d subcontractor’s employee who is injured while working on a self-insured constr uction project and whose injury is compensable under Ohio’s workers’ compensation laws.” We answer the questionin the negative: the provision does not violate the Ohio Constitution’s right-toremedy, right-to-jury, or equal-protection provisions.
So answered.
K ENNEDY , F RENCH , and D E G ENARO , JJ., concur.
F ISCHER , J., concurs, with an opinion.
O’C ONNOR , C.J., and O’D ONNELL , J., concur in judgment only.

_________________ F ISCHER , J., concurring. {¶ 28} I fully and respectfully concur in the majority opinion and its resolution of the arguments presented by th e parties. I write separately, however, to emphasize that the unique language an d historical background of this state’s Equal Protection Clause, Artic le I, Section 2 of the Ohio Constitution, should be carefully analyzed. In a future case, this court should reexamine our precedent holding that the Ohio Equal Protecti on Clause is actually the “functional equivalent” of the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. {¶ 29} Because the parties in this case did not challenge this court’s traditional understanding of th e two clauses as functionall y equivalent, the majority properly follows that precedent. Today’ s decision should not, however, be taken to mean that the precedent is unchallengeable.S UPREME C OURT OF O HIO

12 I. Introduction {¶ 30} This court has previously held that the state courts may recognize protections under the Ohio Constitution that are greater than those provided by the
United States Constitution. Arnold v. Cleveland , 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus. In Arnold , the court conducted an historical analysis, concluding that when adopting Article I, Section 4 of the Ohio Constitution, the people of Ohio “chose to go even further” than the Second Amendment to the United States Constitution regarding the right of an individual to possess firearms. Id. at 43. Thus, it is not a forgone conclusion that a clause in the Ohio Constitution is the “functional equivalent” of a clause in the federal
Constitution that addresses a similar issue. II. The History of the Ohio and Unit ed States Equal Protection Clauses {¶ 31} The Equal Protection Clause of th e Ohio Constitution was adopted as part of the 1851 Ohio Constitution, whereas the Fourteenth Amendment to the
United States Constitution was not ratifie d until 1868. Therefore, there can be no legitimate argument that the Ohio Equal Protection Clause was the “functional equivalent” of the federal Equal Protection Clause for the first 17 years that the
Ohio clause existed—there was no federal clause to which it c ould be equivalent,
functional or otherwise. A. The Ohio Equal Protection Clause {¶ 32} The Ohio Equal Protection Clause is similar in some ways to the Equal Protection Clauses found in the 1776 Vi rginia Declaration of Rights and the 1776 Pennsylvania Constitution. The Ohio Equal Protection Clause provides, “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the ri ght to alter, reform, or abolish the same * * *.” Article I, Section 2, Ohio Constitution. Both the 1776 Virginia and 1776 Pennsylvania clauses provided that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community.”January Term, 2018

13 Virginia Declaration of Rights of 1776, Section 3 ; Pennsylvania Constitution of 1776, Article V . One obvious difference is that neither the Virginia nor the Pennsylvania version actually included the word “equal.” Another difference is the inclusion of the language “or ought to be” in both the former Virginia and Pennsylvania Equal Protection Clauses but not in the Ohio Equal Protection Clause. The phrase “or ought to be” that was cont ained in the Virginia and Pennsylvania
versions has been taken to mean that t hose clauses were more descriptive of a political philosophy than clauses, like the Ohio Equal Protection Clause, that specifically confer rights. Steven H. Steinglass & Gino J. Scarselli, The Ohio State
Constitution 85 (2011). {¶ 33} Idaho Constitution, Article I, Secti on 2 contains the same language as the Ohio Equal Protection Clause, and South Dakota Constitution, Article VI, Section 26 contains similar language. Bo th the Idaho and South Dakota versions, however, were ratified in 1889, 21 years after the federal clause was ratified. Kansas’s equal-protection clause, Kansas Bill of Rights, Section 2, was ratified in 1859, 9 years before the federal clause was ratified. The Kansas version contains language similar to the Ohio Equal Protection Clause, but the Ohio and Kansas
clauses are too distinct to be incontrover tibly viewed as equivalent. And even if the two clauses were identical, they shoul d not be viewed as equivalent without significant background and historical analys is that supports that view. No other state court’s interpretation of its own e qual-protection clause is binding on this court, and because each state versi on has a different historical background, interpretations provided by state courts analyzing their own equal-protection clauses are of limited, if any, persuasive value to an Ohio court interpreting the Ohio Equal Protection Clause. {¶ 34} Moreover, this court di d not cite the Ohio Equal Protection Clause in any published decision until 1895, well af ter the passage of the federal Equal
Protection Clause. See State ex rel. Schwartz v. Ferris , 53 Ohio St. 314, 341, 41S UPREME C OURT OF O HIO

14 N.E. 579 (1895). Thus, this court has not conducted a full analysis of the Ohio Equal Protection Clause that was not influe nced by federal Equal Protection Clause jurisprudence, despite the fact that the Ohio clause is 17 years older than the federal
clause. B. The United States Equal Protection Clause {¶ 35} The federal Equal Protection Clause provides that “[n]o state shall * * * deny to any person within its jurisd iction the equal protec tion of the laws.” The Fourteenth Amendment, including its Equal Protection Cl ause, was drafted primarily by Congressman John Bingham of Ohio. Richard L. Aynes, The Continuing Importance of Congressman John A. Bingham and the Fourteenth
Amendment , 36 Akron L.Rev. 589, 590 (2003). It was ratified in 1868. {¶ 36} The Ohio and federal Equal Pr otection Clauses were drafted relatively closely to each other in time, so it is reasonable to assume that Congressman Bingham was familiar with the la nguage in the Ohio clause. Yet each clause’s language is significantly different from the language of the other. Therefore, either a plain-meaning or an intentionalist interpretation of the Ohio Equal Protection Clause could well lead to the determination that the Ohio clause
is too distinct from the federal clause for them to be considered “functional equivalents.” See Paul Brest, The Misconceived Quest for the Original Understanding , 60 B.U. L.Rev. 204 (1980) and fn. 5, quoting Home Bldg. & Loan
Assn. v. Blaisdell , 290 U.S. 398, 453, 54 S.Ct. 231, 78 L.Ed. 413 (1934) (Sutherland, J., dissenting) (“For the stri ct intentionalist, ‘the whole aim of construction, as applied to a provision of the Constitution, is * * * to ascertain and give effect to the intent of its framers and the people who adopted it’ ” [ellipsis sic]). C. Ohio Supreme Court Cases Analyz ing the Ohio Equal Protection Clause {¶ 37} Traditionally, this court has treated the Ohio Equal Protection Clause and the federal Equal Protection Clause as “functionall y equivalent.” See Schwartz
,January Term, 2018

15 53 Ohio St. at 341, 41 N.E. 579 (“it is sufficient to say that the provisions of this section of the federal constitution, as to this question, are not broader than the second section of our bill of rights”); Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. , 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) (“the federal and Ohio Equa l Protection Clauses are to be construed and analyzed identically”); State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29 (the federal and Ohio Equal Protec tion Clauses are “functionally equivalent and require the same analysis”). {¶ 38} Nonetheless, that precedent has been questioned in at least two
recent decisions. See State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 11 (“the Equal Protection Clause of the Ohio Constitution is coextensive with, or stronger than , that of the federal Constitution” [emphasis added]); State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368. In
Mole , Chief Justice O’Connor authored the l ead opinion, which was joined by two other justices, and another justice concurre d in judgment only. The chief justice made clear that the Ohio Constitution is a document of force independent from the United States Constitution, id. at ¶ 14, and that there are situations in which “the guarantees of equal protection in the Ohio Constitution independently forbid * * * disparate treatment” even if the federal E qual Protection Clause does not forbid that
treatment, id. at ¶ 23. Justice French, in a dissenting opinion in Mole that was joined by Justice O’Donnell, stated that the Ohio Equal Protection Clause may in theory provide greater protections than those pr ovided by the federal clause but that holding as much requires “an independe nt analysis of the equal-protection guarantee in Article I, Section 2 of the Ohio Constitution premised on its language, history or early understandings.” Id. at ¶ 117 (French, J., dissenting). {¶ 39} Thus, this court’s jurisprudence on the Ohio Equal Protection Clause has not been uniform. Given the recent divergence from our traditional understanding of the clause, it is not unreasona ble to suggest that this court should,S UPREME C OURT OF O HIO

16 with the benefit of full briefing, thoroughly reexamine the Ohio and federal Equal
Protection Clauses and determine whether th ey are indeed functional equivalents. III. Testing Functional Equivalence {¶ 40} One major problem with the functiona l-equivalence approach is that United States Supreme Court precedent regarding some amendments to the United States Constitution, including the Fourteen th Amendment and its Equal Protection Clause, is far from static. In the 1960s, th e court applied a rati onal-basis test unless the statute at issue “classified on the basis of race” or “provided for unequal
distribution of fundamental ri ghts.” William D. Araiza, The Section 5 Power and the Rational Basis Standard of Equal Protection , 79 Tul. L.Rev. 519, 521-522 (2005). By the end of the 1970s, the court ha d started applying differing levels of scrutiny that were “higher” than the rati onal-basis test to cases involving gender, illegitimacy, and alienage. Id . at 522. By the mid-1990s, the court was applying in equal-protection gender cases a standard of review similar to that which it was applying in equal-protection race cases. Id

. {¶ 41} As noted above, this court first recognized the Ohio Equal Protection Clause as the functional equi valent of the federal Equal Protection Clause in 1895.
See Schwartz , 53 Ohio St. at 341, 41 N.E. 579. Plainly, the United States Supreme Court’s interpretation of the federal Equal Protection Cl ause has changed significantly during the 120-plus years that have passed since this court’s first recognition of functional equiva lence. With this in mind, it is arguable that the Ohio Equal Protection Clause should be in terpreted as providing the protections that the United States Supreme Court had recognized under the federal Equal Protection Clause until 1895. Moreover, in the future, the United States Supreme Court may continue to add or subtract from the protections it interprets the federal Equal Protection Clause as providing. {¶ 42} By treating the two clauses as functionally equivalent, this court delegates its final authority to interpret the Ohio clause to the United StatesJanuary Term, 2018

17 Supreme Court, which that court exercises whenever it substantially alters its interpretation of the federal clause. Th is “upward delegation” of the duty to interpret the Ohio Constitution is imp roper under our federal system and
unconstitutional under the Ohio Constitution. See Article IV, Section 1, Ohio Constitution. Thus, a strong argument can be made that this court cannot blindly accept the current, or any new, federal interpretation but instead must independently determine when interpreting the Ohio Equal Protection Clause whether to follow the United States Supreme Court’s interpretation of the federal Equal Protection
Clause. {¶ 43} Because this court’s recent caselaw on the Ohio Equal Protection Clause is not uniform, because the Ohio clause has language and a historical background that are substantially different from those of the federal Equal Protection Clause, and because the United States Supreme Court’s jurisprudence on the federal clause has repeatedly shifted since this court first made the “functional equivalenc e” determination, a future cha llenge to this court’s equalprotection functional-equivalence preced ent should be carefully analyzed and resolved with thorough reasoning.
IV. Conclusion {¶ 44} Again, the parties in this case did not challenge this court’s traditional understanding that the Ohio E qual Protection Clause is the functional equivalent of the federal Equal Protection Clause. As is proper, the majority opinion does not conduct an analysis of unr aised arguments. I take no position on whether the arguments proposed above, or any other arguments challenging this
court’s functional- equivalence holdings, would lead me to conclude that the Ohio Equal Protection Clause is anything othe r than the functional equivalent of the federal Equal Protection Clause as curre ntly interpreted by the United States Supreme Court. Nonetheless, if such arguments were properly briefed and submitted to this court, I believe that the court would need to conduct “anS UPREME C OURT OF O HIO

18 independent analysis of the equal-protection guarantee in Article I, Section 2 of the Ohio Constitution premised on its language, history or early understandings,” Mole
, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, at ¶ 117 (French J. dissenting).

_________________ Kohnen & Patton, L.L.P., Colleen M. Bla ndford, and Jordan T. Steiner, for petitioner J & B Steel Erectors, Inc. Patsfall, Yeager & Pflum, L.L.C., Susan M. Salyer, Stephen M. Yeager, and Stephen J. Patsfall, for pe titioners TriVersity Construction Co., L.L.C., and D.A.G. Construction Co., Inc. Beckman Weil Shepardson, L.L.C., Stephanie M. Day, and Kristen M. Myers; and Goodson & Company and Brett C. Goodson, for respondent Daniel
Stolz. Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Michael J. Hendershot, Chief Deputy Solicito r, in support of petitioners for amicus
curiae State of Ohio. Green & Green Lawyers, L.P.A., Jane M. Lynch, and Jared A. Wagner, in support of petitioners for amicus cu riae Messer Construction Company.

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