On Appeal from the United States District Court for the Southern District of Ohio, Western Division, Case No

Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 1 No. 14-3057 ______

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______

JAMES OBERGEFELL; JOHN ARTHUR DAVID BRIAN MICHENER; and ROBERT GRUNN;

Plaintiffs – Appellees,

LANCE D. HIMES, in his official capacity as the Interim Director of the Ohio Department of Health;

Defendant – Appellant.

On Appeal from the United States District Court for the Southern District of Ohio, Western Division, Case No. 13-CV-00501 (Hon. Timothy S. Black) ______

BRIEF OF AMICI CURIAE EQUALITY OHIO, EQUALITY OHIO EDUCATION FUND, AND FOUR GAY AND LESBIAN COUPLES IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE*

Roberta A. Kaplan, Esq. Alan B. Morrison, Esq. PAUL, WEISS, RIFKIND, GEORGE WASHINGTON WHARTON & GARRISON LLP UNIVERSITY LAW SCHOOL 1285 Avenue of the Americas 2000 H Street, N.W. New York, New York 10019-6064 Washington, DC 20052 (212) 373-3000 (202) 994-7120 [email protected] [email protected]

Thomas D. Warren, Esq. BAKER & HOSTETLER LLP PNC Center 1900 East 9th Street, Suite 3200 Cleveland, Ohio 44114-3482 (216) 621-0200 [email protected] Attorneys for Amici Curiae

*Submitted with Consent of the Parties Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 2 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest Sixth Circuit Case Number: 14-3057 Case Name: Obergefell v. Himes Name of counsel: Roberta Kaplan

Pursuant to 6th Cir. R. 26.1, Equality Ohio Name of Party makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No.

CERTIFICATE OF SERVICE

I certify that on ______May 1, 2014 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

s/ Roberta Kaplan

This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08 Page 1 of 2 Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 3 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest Sixth Circuit Case Number: 14-3057 Case Name: Obergefell v. Himes Name of counsel: Roberta Kaplan

Pursuant to 6th Cir. R. 26.1, Equality Ohio Education Fund Name of Party makes the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

CERTIFICATE OF SERVICE

s/ Roberta Kaplan

This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

6CA-1 8/08 Page 1 of 2 Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 4

TABLE OF CONTENTS Page

INTEREST OF AMICI CURIAE ...... 1

SUMMARY OF ARGUMENT ...... 3

ARGUMENT ...... 6

I. The Decision Below Should Be Affirmed Under Windsor ...... 6

II. The Relevant Provisions of Ohio’s Constitution and Statutes Deprive Gay Couples of Rights Available to Other Couples ...... 11

III. The Ohio Laws Precluding the Provision of Any Rights to Gay Couples in Ohio Violate the Constitution ...... 20

IV. There Can Be No Possible Rational Basis for Denying Recognition of a Gay Couple’s Marriage on a Death Certificate ...... 28

CONCLUSION ...... 31

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TABLE OF AUTHORITIES Page(s) CASES In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998) ...... 16

Baskin v. Bogan, No. 1:14-cv-355, 2014 WL 1568884 (S.D. Ind. Apr. 18, 2014) ...... 8, 10

Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013) ...... 10

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ...... 23 Bishop v. United States ex rel. Holder, No. 4:04-CV-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) ...... 9, 10 Bostic v. Rainey, No. 2:13-CV-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ...... 10 Bourke v. Beshear, No. 3:13-CV-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ...... 9, 10 Cooper-Harris v. United States, 965 F. Supp. 2d 1139 (C.D. Cal. 2013) ...... 10

Cozen O’Connor, P.C. v. Tobits, No. 2:11-CV-00045, 2013 WL 3878688 (E.D. Pa. July 29, 2013) ...... 10

De Leon v. Perry, No. 5:13-CV-982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ...... 8, 9, 10

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DeBoer v. Snyder, No. 2:12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ...... 10

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ...... 12

Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. 2013) ...... 10 Gray v. Orr, No. 1:13-CV-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) ...... 9, 10

Griego v. Oliver, 316 P.3d 865 (N.M. 2013) ...... 10 Henry v. Himes, No. 1:14-CV-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) ...... 10 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) ...... 10

Lawrence v. Texas, 539 U.S. 558 (2003) ...... 23, 24, 25, 26 Lee v. Orr, No. 1:13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013) ...... 9, 10

Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ...... 7

Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) ...... 10

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

Romer v. Evans, 517 U.S. 620 (1996) ...... passim

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Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ...... 7

Schuette v. Coal. to Defend Affirmative Action, No. 12-682, slip op. (U.S. Apr. 22, 2014) ...... 26

SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ...... 10

Tanco v. Haslam, No. 3:13-CV-1159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ...... 10 United States v. Windsor, 133 S. Ct. 2675 (2013) ...... passim

STATUTES Ohio Rev. Code Ann. Title 1 ...... 16 Ohio Rev. Code Ann. § 102.01(D) ...... 19 Ohio Rev. Code Ann. § 102.02(A)(1) ...... 19 Ohio Rev. Code Ann. § 102.03(C) ...... 19 Ohio Rev. Code Ann. § 145.45(B) ...... 15

Ohio Rev. Code Ann. § 742.02 ...... 15, 18 Ohio Rev. Code Ann. § 1709.01 ...... 18

Ohio Rev. Code Ann. § 2105.06 ...... 18

Ohio Rev. Code Ann. § 2106.01 ...... 17 Ohio Rev. Code Ann. § 2106.10 ...... 17

Ohio Rev. Code Ann. § 2125.02(A)(1) ...... 18

Ohio Rev. Code Ann. § 2133.08(B) ...... 3, 17

Ohio Rev. Code Ann. Title 29 ...... 16 Ohio Rev. Code Ann. Title 31 ...... 16

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Ohio Rev. Code Ann. § 3101.01 ...... passim Ohio Rev. Code Ann. § 3105.10(A) ...... 18, 19

Ohio Rev. Code Ann. § 3105.171 ...... 19

Ohio Rev. Code Ann. § 3105.21 ...... 19

Ohio Rev. Code Ann. § 3107.03 ...... 16

Ohio Rev. Code Ann. Title 33 ...... 16, 17

Ohio Rev. Code Ann. Title 37 ...... 17 Ohio Rev. Code Ann. § 4123.59(D)(1) ...... 18 Ohio Rev. Code Ann. § 5747.08(E) ...... 2, 14

Ohio Rev. Code Ann. Title 58 ...... 17

CONSTITUTIONS Colorado Const. art. II, § 30(b)...... 20 Ohio Const. art. XV, § 11 ...... passim

OTHER AUTHORITIES Alan Johnson, Homosexuality Should Be Crime, Proponent of State Issue 1 Says, Columbus Dispatch, Oct. 9, 2004 ...... 22 Darrel Rowland & Jonathan Riskind, On ‘Values,’ a Bitter Fight, Columbus Dispatch, Oct. 24, 2004 ...... 22, 23

James Dao, Flush with Victory, Grass-Roots Crusader Against Same-Sex Marriage Thinks Big, N.Y. Times, Nov. 26, 2004 ...... 23

Ohio Dep’t of Admin. Servs., State of Ohio Employee Benefits Guide (2013-2014) ...... 16

Ohio Dept’ of Taxation, Individual Income Tax: Who Must File ...... 14

Ohio Police & Fire Pension Fund, Member’s Guide to Health Care Coverage for 2014 ...... 2, 16

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Ohio Pub. Emp. Ret. Sys., Monthly Benefits ...... 15 Order, Tanco v. Haslam, No. 14-5297 (6th Cir. Apr. 25, 2014), D.E. #29 ...... 8

Phillip Morris, Blackwell Puts His Prejudice on Display, Plain Dealer, Oct. 26, 2004 ...... 22

Rob Portman, Op-Ed., Gay Couples Also Deserve Chance To Get Married, Columbus Dispatch, Mar. 15, 2013...... 24

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INTEREST OF AMICI CURIAE1 This brief of amici curiae is being submitted on behalf of

Equality Ohio and Equality Ohio Education Fund, along with four gay and lesbian couples, each of whom is in a committed, long-term relationship (the

“Amici Curiae”). Amici Curiae seek to obtain equal protection under the law in connection with the very significant and concrete rights, benefits, and duties that come with marriage for straight couples in Ohio. Indeed, certain provisions in Ohio’s statutes and Constitution that were not fully discussed either in the proceedings below or in Plaintiffs’ brief are particularly egregious from a constitutional standpoint because they not only deny gay couples access to marriage, but actually prohibit the provision of any governmental right, duty, or benefit to any gay couple regardless of the circumstances.

Equality Ohio is a 501(c)(4) non-profit organization whose mission is to achieve fair treatment and equal opportunity for all Ohioans, regardless of their sexual orientation. Indeed, Equality Ohio was founded in

2005 after Ohio voters passed the constitutional amendment banning gay marriage and civil unions that is at issue on this appeal. Equality Ohio

1 This brief is filed with the consent of all parties. Counsel for a party did not author this brief in whole or in part, and no one other than the Amici Curiae or their counsel contributed money that was intended to fund the preparation or submission of this brief.

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Education Fund is a 501(c)(3) non-profit educational organization sharing

the same goals. Both organizations are headquartered in Columbus, and

73,808 Ohioans from around the state actively support them.

Tara Kay Robertson and Sarah Ruth Marshall have been together in a committed relationship for the past four years, and live in

Dayton, Ohio. Both have lived in Ohio their entire lives, and would like to marry in their home state. Sarah works as a firefighter and paramedic for the

City of Dayton and Tara works as an auto mechanic. They would like to file joint tax returns. See, e.g., Ohio Rev. Code Ann. § 5747.08(E) (authorizing

married couples to file joint tax returns). They would also like to participate

jointly in the state health system, since such participation would provide

them with several concrete benefits. Tara and Sarah are not permitted to do

so solely because they are lesbians. See Ohio Police & Fire Pension Fund,

Member’s Guide to Health Care Coverage for 2014 at 7, available at

http://www.op-f.org/Files/HCmemberGuide2014.pdf (listing eligible

beneficiaries as a spouse, child, or dependent parent).

Timothy Broud and Richard Moore have been together for

approximately twenty-two years, and plan to marry. Each has lived in Ohio his entire life. Timothy has suffered from major health issues in the past, and Richard has always been there for him during hospital stays. On many

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occasions, however, hospitals have refused to speak to Richard about

Timothy’s treatment, since he is not a legal spouse. See Ohio Rev. Code

Ann. § 2133.08(B).

Angela Wellman and Julie Lamere have been in a relationship for eleven years. In 2005, they traveled from Ohio, where both have lived their entire lives, to Vermont in order to enter into a civil union. Julie works in human resources for a private, non-profit organization, and Angela works as a Student Life Coordinator for the Multicultural Center at Ohio State

University. Angela and Julie would like to marry in their home state of

Ohio.

Joel Diaz and Craig Scheidler have been in a relationship for fourteen months. They are recently engaged and look forward to raising a family together. Joel and Craig have both dedicated their careers to public service in Ohio.

SUMMARY OF ARGUMENT The district court properly held that Ohio’s ban on the recognition on death certificates of out-of-state gay marriages is unconstitutional as applied to Plaintiffs. This same reasoning applies with equal (or perhaps even greater) force to committed gay couples in Ohio who

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are being unjustly deprived of all of the other practical benefits of marriage as well.

In concluding that Ohio must recognize Plaintiffs’ marriages on death certificates, the district court rightly noted that the death certificates

“are important not only for the dignity of the surviving spouse and his or her family, but also have evidentiary value for rights such as receiving life insurance payouts, claiming social security survivors benefits, administering wills, and . . . transfer[ing of] property.” Obergefell v. Wymyslo, 962 F.

Supp. 2d 968, 980 (S.D. Ohio 2013). The district court was exactly right.

The broad sweep of Ohio law bars far more than the mere recognition of out-of-state marriages on death certificates. Article XV, section 11 of the

Ohio Constitution states that:

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 (the “Constitutional Amendment”) (emphasis added). Echoing this language, the Ohio Code provides that:

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.

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Ohio Rev. Code Ann. § 3101.01(C)(3) (emphasis added). Thus, while the

Constitutional Amendment and Section 3101.01 discriminate against gay couples not only by denying them recognition of their out-of-state marriages and the right to marry—both clearly unconstitutional—they actually go much further than that. Ohio law blatantly and permanently denies gay couples any legal rights as a couple in any form whatsoever. Ohio Const. art. XV, § 11; Ohio Rev. Code Ann. § 3101.01(C).

The scope of the above-quoted provisions is breathtaking.

They expressly bar the State of Ohio from recognizing any legal rights, responsibilities, or protections—regardless of the subject matter—to any member of any gay couple at any time or in any place. By depriving gay

Ohioans of access to myriad statutory rights and benefits available to straight

Ohioans through marriage, these laws constitute independent and grievous violations of the constitutional guarantee of equal protection. These provisions effectively write discrimination into Ohio law in violation of the

Fourteenth Amendment to the United States Constitution. See United States v. Windsor, 133 S. Ct. 2675 (2013); Romer v. Evans, 517 U.S. 620 (1996)

(declaring unconstitutional initiative that overrode existing laws banning discrimination against gays and lesbians).

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Plaintiffs in this case have suffered an unquestionable harm from the State’s refusal to recognize their out-of-state marriages on death certificates. But gay Ohioan couples seeking to marry in their home state, including Amici Curiae, suffer from a multitude of additional, daily harms not addressed by Plaintiffs. This Court should evaluate the constitutionality of the full provisions at issue and, in deciding this case, grant full dignity and rights to gay Ohioans with respect to all of the benefits enjoyed by married straight couples in Ohio.

ARGUMENT

I. The Decision Below Should Be Affirmed Under Windsor The Supreme Court in Windsor correctly understood the marriages of gay couples to be far “more than a routine classification for purposes of certain statutory benefits,” but instead a “far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.” United States v. Windsor, 133 S. Ct. 2675, 2692–

93 (2013). Thus, the essence of the Court’s decision in Windsor is that gay people, like straight people, have dignity, and that the United States

Constitution mandates that this dignity must be respected equally under the law. See, e.g., id. at 2693 (“[I]nterference with the equal dignity of same-sex

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marriages . . . was more than an incidental effect of the federal statute.”

(emphasis added)); id. at 2692 (“The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” (emphasis added)); id. at 2696 (“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.” (emphasis added)).

Because gay people are entitled to be treated in a way that recognizes their equal dignity under the law, there can be no possible justification for Ohio’s radically disparate treatment of them here. The

Equal Protection Clause, as this Court has stated in Miller v. City of

Cincinnati, “protects against invidious discrimination among similarly situated individuals.” 622 F.3d 524, 538 (6th Cir. 2010). Further, “[t]he desire to effectuate one’s animus against homosexuals . . . can never be a legitimate governmental purpose, and a state action based on that animus alone violates the Equal Protection Clause.” Scarbrough v. Morgan Cnty.

Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (quoting Stemler v. City of

Florence, 126 F.3d 856, 873–74 (6th Cir. 1997)).

As the court below correctly concluded, Ohio’s law prohibiting the recognition of Plaintiffs’ out-of-state marriages on death certificates

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violates the United States Constitution’s guarantee of equal protection.

Wymyslo, 962 F. Supp. 2d at 983. Following Windsor, the district court

correctly reasoned that, just as the United States Constitution prevents the

federal government from discriminating against gay couples, it does not

permit state governments to discriminate in the same or similar manner. Id.

at 973–74. Similarly, the district court was correct to hold that “[d]efendants

have not provided 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 981–82 (emphasis in original).2

Not surprisingly, a large number of other federal district courts have reached the same conclusion. See Baskin v. Bogan, No. 1:14-cv-355,

2014 WL 1568884, at *2 (S.D. Ind. Apr. 18, 2014) (“In Windsor, Justice

Kennedy emphasized the dignitary harms suffered as a result of the Defense

of Marriage Act. . . . Thus, the court finds that Windsor recognized and

remedied a dignitary injury.”); De Leon v. Perry, No. 5:13-CV-982, 2014

WL 715741, at *27 (W.D. Tex. Feb. 26, 2014) (“Supreme Court precedent

prohibits states from passing legislation born out of animosity against

2 As Plaintiffs argue in their brief, heightened scrutiny is warranted here. Indeed, the Sixth Circuit recently recognized that “the law in this area is [] unsettled.” Order, Tanco v. Haslam, No. 14-5297 (6th Cir. Apr. 25, 2014), D.E. #29, at 2.

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homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same- sex marriages differently (Windsor).”); Bourke v. Beshear, No. 3:13-CV-

750, 2014 WL 556729, at *12 (W.D. Ky. Feb. 12, 2014) (“Romer,

Lawrence, and finally, Windsor . . . ha[ve] led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.”); Bishop v. United States ex rel. Holder,

No. 4:04-CV-848, 2014 WL 116013, at *17 (N.D. Okla. Jan. 14, 2014)

(“This Court interprets Windsor as an equal protection case holding that

DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples.” (citing Windsor, 133 S. Ct. at 2694)); Lee v. Orr, No. 1:13-CV-8719, 2013 WL 6490577, at *3 (N.D.

Ill. Dec. 10, 2013) (“Equally compelling are the intangible personal and emotional benefits that the dignity of equal and official marriage status confers.” (citing Windsor, 133 S. Ct. at 2692)); Gray v. Orr, No. 1:13-CV-

8449, 2013 WL 6355918, at *4 (N.D. Ill. Dec. 5, 2013) (“Equally, if not more, compelling is Plaintiffs’ argument that . . . they will also be deprived of enjoying the less tangible but nonetheless significant personal and

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emotional benefits that the dignity of official marriage status confers.”

(citing Windsor, 133 S. Ct. at 2692)).

Indeed, since the Supreme Court issued its Windsor decision

last June, no fewer than nineteen courts across the United States have held

that the core principle of equal dignity in Windsor compels extending rights

to gay people.3 Significantly, not a single court faced with these issues has held to the contrary.

3 See Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013); Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013); Cozen O’Connor, P.C. v. Tobits, No. 2:11-CV-00045, 2013 WL 3878688 (E.D. Pa. July 29, 2013); Cooper-Harris v. United States, 965 F. Supp. 2d 1139 (C.D. Cal. 2013); Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. 2013); Gray v. Orr, No. 1:13-CV-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013); Lee v. Orr, No. 1:13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Bishop v. United States ex rel. Holder, No. 4:04-CV-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014); Bourke v. Beshear, No. 3:13-CV-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, No. 2:13-CV-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, No. 5:13-CV-982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, No. 3:13-CV-1159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, No. 2:12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014); Henry v. Himes, No. 1:14-CV- 129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); Baskin v. Bogan, 1:14- cv-00355, 2014 WL 1568884 (S.D. Ind. Apr. 18, 2014).

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II. The Relevant Provisions of Ohio’s Constitution and Statutes Deprive Gay Couples of Rights Available to Other Couples As discussed above, the Ohio Constitution not only prohibits

gay couples from marrying, and prohibits Ohio’s recognition of their lawful, out-of-state marriages, but also prevents them from receiving any of the

benefits (including recognition on a death certificate) available to married

couples in any circumstances. The Constitutional Amendment could hardly

be more explicit when it states that “[t]his 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 (emphasis added). This language on its face purports to prohibit the state government in Ohio from

providing even specific, discrete benefits to gay couples such as the right to

make medical decisions for one’s partner in case of emergency, or the right

to participate as a family member in a health insurance plan. In other words,

gay people in Ohio are permanently disabled under Ohio law from being treated as anything other than second-class citizens. This is as true for the death certificates sought by Plaintiffs as it is for the more expansive benefits and recognition sought by Amici Curiae.

As when construing any statute, the Constitutional Amendment and Section 3101.01 must be examined as a whole, not merely as isolated

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sections. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132–33 (2000). Thus, while this Court must give careful attention to Ohio’s refusal to recognize the lawful, out-of-state marriages of gay people on death certificates, its analysis cannot end there. The Court must also decide whether Ohio’s prohibition of gay people from ever obtaining any rights as committed couples—at any time and under any circumstances—passes constitutional muster. For the reasons set forth below, it does not.

In finding the Defense of Marriage Act (“DOMA”) unconstitutional in Windsor, Justice Kennedy emphasized that Section 3 of

DOMA “touches many aspects of married and family life, from the mundane to the profound . . . [and] divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force.” Windsor, 133

S. Ct. at 2694–95. See also Transcript of Oral Argument at 71, United

States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (“Justice Ginsburg:

[I]t’s—as Justice Kennedy said, 1,100 statutes, and it affects every area of life . . . [DOMA says there are] two kinds of marriage, the full marriage, and then this sort of skim milk marriage.”). The Windsor court catalogued many of the key injuries wrought by DOMA: it “prevent[ed]” access to

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“government healthcare benefits”; “deprive[d]” gay couples “of the

Bankruptcy Code’s special protections”; “prohibit[ed]” gay couples “from

being buried together in veterans’ cemeteries”; rendered “inapplicable”

protections for the family members of United States officials, judges, and

federal law enforcement officers; “br[ought] financial harm to children of

same-sex couples . . . [by] rais[ing] the cost of health care for families by

taxing health benefits provided by employers to their workers’ same-sex

spouses”; and “denie[d] or reduce[d] benefits allowed to families upon the

loss of a spouse and parent, . . . [which] are an integral part of family

security.” Windsor, 133 S. Ct. at 2694–95.

It cannot be seriously disputed that the Constitutional

Amendment and Section 3101.01, by failing to grant equal dignity to gay

couples in Ohio, do exactly the same thing here. Just as DOMA worked to

“impose restrictions and disabilities” on gays and lesbians like Edith

Windsor living in New York, the Ohio Code and administrative regulations

provide scores of significant benefits and rights to Ohio citizens, “from the

mundane to the profound.”4 Windsor, 133 S. Ct. at 2692, 2694. They

4 As Defendants properly note in their brief, the same is true with regard to Ohio state law. Brief of Appellant Lance D. Himes at 47, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 10, 2014) (There are “hundreds of provisions . . . that rely in some way on the terms ‘husband,’ ‘wife,’ or ‘spouse,’ sometimes with associated gender pronouns. Those provisions

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govern financial decisions and financial security, familial relationships and

parental obligations, access to healthcare and the authority to make medical

decisions for a loved one, and estate planning and the transfer of assets.5

The deliberate withholding of these statutory protections from committed gay and lesbian couples in Ohio offends basic principles of equal protection.

An illustrative, though not comprehensive, list of some of the more significant rights and benefits is discussed below.

• Income tax. Ohio law authorizes only married couples to file joint

tax returns. See Ohio Rev. Code Ann. § 5747.08(E); see also Ohio Dep’t of

Taxation, Individual Income Tax: Who Must File, available at

http://www.tax.ohio.gov/ohio_individual/individual/who_must_file.aspx

(explaining that gay and lesbian couples who file federal income taxes

jointly must still file Ohio state income taxes separately). For couples such

as the Amici Curiae, who keep joint accounts and co-own property, being

able to file joint returns that reflect their financial interconnectedness would

touch all manner of topics, ranging from domestic relations to tort remedies to tax law.”). 5 Notably, most of these benefits accrue to married couples without regard to the presence of children, thoroughly undermining the purported state interests identified by amicus curiae Citizens for Community Values. See Amicus Curiae Brief for Citizens for Community Values in Support of Defendants-Appellants at 15–26, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 17, 2014) (arguing that Ohio’s gay marriage ban is rationally related to promoting child-rearing by two parents, one of each gender).

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obviate the unnecessary complication and expense of filing taxes as if they lived separate financial lives. In addition, for some couples, filing jointly would reduce their overall tax burden.

• Retirement and health benefits for public employees. Public employees in Ohio are entitled to participate in generous state retirement plans and access affordable healthcare for their families. However, some of the most favorable benefits available under the Ohio Public Employees

Retirement System and the Ohio Police & Fire Pension Fund are available only to the “spouse” of a retiree, and not to any other designated beneficiary.

See, e.g., Ohio Rev. Code Ann. § 145.45(B) (providing benefits to “qualified survivors,” including a “surviving spouse”); Ohio Rev. Code Ann. § 742.02

(creating the Ohio Police & Fire Pension Fund “for the purpose of providing disability benefits and pensions to members of the fund and their surviving spouses, children, and dependent parents”); see also Ohio Pub. Emp. Ret.

Sys., Monthly Benefits, available at https://www.opers.org/members/ traditional/benefits/monthly.shtml (limiting “qualified beneficiaries” to a surviving spouse, child, or dependent parent). Some public employees, including Sarah Marshall, purchase health insurance through a medical plan sponsored by the State. An employee’s spouse can join the plan for a

15 Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 25

nominal fee, but gay and lesbian partners, including Sarah’s partner Tara, are not allowed to do so.6

• Family and parenthood. Ohio law expressly prohibits gay partners

from adopting children, as two people are permitted to adopt a child together

only where they are “husband and wife.”7 Ohio Rev. Code Ann.

§ 3107.03(A). Further, the inability to establish a legally recognized parent- child relationship excludes gay and lesbian couples and their children from the many rights and obligations attendant to the parent-child relationship

under Ohio law.8

6 See Ohio Police & Fire Pension Fund, Member’s Guide to Health Care Coverage for 2014 at 5, available at http://www.op-f.org/Files/HCmember Guide2014.pdf (listing eligible beneficiaries as a spouse, child, or dependent parent); Ohio Dep’t of Admin. Servs., State of Ohio Employee Benefits Guide 5 (2013-2014), available at http://das.ohio.gov/LinkClick.aspx? fileticket=Qq7ZC7W0XZg%3d&tabid=190 (listing as eligible beneficiaries “[y]our current legal spouse as recognized by Ohio law.”); id. at 7 (“Examples of persons NOT eligible for coverage as a dependent include . . . Same-sex partners” (emphasis in original)). 7 Even where a gay individual, prior to cohabitating, lawfully adopted a child, Ohio law prevents a gay partner from later becoming a second parent to that child. Curiously (and irrationally), state law authorizes single, gay individuals to adopt. Ohio Rev. Code Ann. § 3107.03(B) (an “unmarried adult” may adopt). However, if a gay individual enters into a committed, long-term relationship and lives with his or her partner, the State prevents that child from benefiting from two loving parents rather than only one. See In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998) (prohibiting “second parent” adoption by lesbian partner of child’s biological mother). 8 See generally, e.g., Ohio Rev. Code Ann. Title 1 (State Government); Ohio Rev. Code Ann. Title 29 (Crimes); Ohio Rev. Code Ann. Title 31 (Domestic Relations—Children); Ohio Rev. Code Ann. Title 33

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• Healthcare decisions. Ohio law presumes that gay people are not

qualified or permitted to make medical decisions on behalf of their

committed, long-term partners. In the absence of an advance health-care

directive, the following individuals, in order of priority, are appointed as

surrogates: the patient’s guardian, spouse (which obviously cannot include a

gay partner), adult child, parent, sibling, or the nearest adult relative not

already described. Ohio Rev. Code Ann. § 2133.08(B). Ohio does not

authorize a gay or lesbian partner to be in that line of succession.

• Probate, transfer of assets, and statutory claims. Ohio estate law

protects and provides for surviving spouses, but denies these rights to

surviving gay and lesbian partners. Gay partners are prevented from

obtaining the elective share a surviving spouse is able to take from the

decedent’s estate, which is property that can be used to support the surviving

spouse even when the decedent’s will makes no provision for such support.9

Ohio Rev. Code Ann. § 2106.01. Additionally, gay partners are not included

(Education); Ohio Rev. Code Ann. Title 37 (Health — Safety — Morals); Ohio Rev. Code Ann. Title 58 (Trusts). 9 In addition, the surviving spouse may elect to receive the decedent spouse’s entire interest in the couple’s home. See Ohio Rev. Code Ann. § 2106.10.

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within the laws of intestate succession. See Ohio Rev. Code Ann.

§ 2105.06.10

Gay men and lesbians in Ohio are also excluded from statutory

rights of action for wrongful death—the cause of action is “for the exclusive

benefit of the surviving spouse, the children, and parents of the decedent,”

which excludes a surviving gay partner. Ohio Rev. Code Ann.

§ 2125.02(A)(1). Similarly, if there is a workplace accident, a spouse—but

again, not a gay or lesbian partner—is authorized to collect worker’s

compensation. Ohio Rev. Code Ann. § 4123.59(D)(1). And while spouses

of certain public employees (such as firefighters, like Sarah Marshall) who

die in the line of duty are entitled to statutory death benefits, gay partners are

excluded from these benefits. Ohio Rev. Code Ann. § 742.02.

• Misc. Duties. With rights, of course, come responsibilities. Gay

couples in Ohio are not only prohibited from receiving any of the benefits of

marriage, but they are also exempt from any of its responsibilities. Thus,

when a gay couple separates, there are no available options for legally-

sanctioned divorce, alimony, or child support. See Ohio Rev. Code Ann.

10 In addition, several other laws reference Ohio’s scheme of intestate succession. For example, where an owner of securities has not filled out a “beneficiary form,” upon death the security is transferred in accordance with the order of precedence established by the Trusts Code. See Ohio Rev. Code Ann. § 1709.01.

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§ 3105.10(A) (divorce only available for those in a “marriage”); Ohio Rev.

Code Ann. §§ 3105.171, 3105.21 (court authority in a divorce proceeding to enter orders related to the disposition of property, alimony, and child

custody). Nor is a state employee who is gay required to disclose

information about his or her partner for conflict of interest purposes. See,

e.g., Ohio Rev. Code Ann. § 102.01(D) (defining “Immediate family” as “a

spouse residing in the person’s household and any dependent child”); Ohio

Rev. Code Ann. § 102.02(A)(1) (requiring disclosure by state government

officials of names under which a spouse conducts business); Ohio Rev. Code

Ann. § 102.03(C) (prohibiting public officials and employees from

participating in any license or rate-making proceeding that affects the license

or rates of a business owned or controlled by a spouse).

* * *

In sum, not only does Ohio deny gay and lesbian couples the

right to marry and bar the recognition of lawful, out-of-state gay marriages,

but it expressly prohibits gay Ohioans from ever enjoying the many tangible

benefits that married couples in Ohio have—solely because they are gay. In

the words of the Supreme Court, “[t]hese are protections taken for granted

by most people either because they already have them or do not need them;

these are protections against exclusion from an almost limitless number of

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transactions and endeavors that constitute ordinary civic life in a free

society.” Romer, 517 U.S. at 631. The irrational denial of these important

rights and benefits available to straight couples is another significant reason

for striking down the Constitutional Amendment and Section 3101.01 as violating the Equal Protection Clause.

III. The Ohio Laws Precluding the Provision of Any Rights to Gay Couples in Ohio Violate the Constitution In Romer, the Supreme Court held that an amendment to the

Colorado Constitution that prevented both the State of Colorado and individual Colorado municipalities from protecting gay people from discrimination was unconstitutional on equal protection grounds.11 517 U.S.

620. The Romer court found the Colorado amendment to violate the

Fourteenth Amendment’s guarantee of equal protection because it

“classifie[d] homosexuals not to further a proper legislative end but to make

11 The relevant amendment, Colo. Const. art. II, § 30b, stated as follows:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

Romer, 517 U.S. at 624 (emphases added).

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them unequal to everyone else.” Id. at 635. As the Court held, “[a] State

cannot so deem a class of persons a stranger to its laws.” Id.

Last term, in Windsor, the Court reaffirmed this principle in the

strongest possible terms. The Court emphasized that the “Constitution’s

guarantee of equality must at the very least mean that a bare congressional

desire to harm a politically unpopular group cannot justify disparate

treatment of that group.” Windsor, 133 S. Ct. at 2693 (internal quotations

omitted). Just like the state constitutional amendment at issue in Romer, the

Ohio laws at issue here “withdraw[] from homosexuals, but no others,

specific legal protection . . . .” Romer, 517 U.S. at 627.

Here, as in Romer and Windsor, there is significant evidence of improper animus towards gay and lesbian people in the discussion surrounding the passage of Ohio’s Constitutional Amendment. The district court, for example, pointed out that the primary sponsor for the

Constitutional Amendment was Citizens for Community Values, which misled voters with messages such as: “[s]exual relationships between members of the same sex expose gays, lesbians and bisexuals to extreme risks of sexually transmitted diseases, physical injuries, mental disorders and even a shortened life span” and “we won’t have a future unless

[heterosexual] moms and dads have children.” Wymyslo, 962 F. Supp. 2d at

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975. The district court also quoted the Governor of Ohio as saying, in reference to the Constitutional Amendment: “At a time when parents and families are under constant attack within our social culture, it is important to confirm and protect those environments that offer our children, and ultimately our society, the best opportunity to thrive.” Id.

There is also powerful evidence of animus published in the media at the time of the Constitutional Amendment’s enactment. Speaking to a church group, for example, then-Ohio Secretary of State Ken Blackwell declared that “the notion [of gay marriage] even defies barnyard logic” because “the barnyard knows better.” See Phillip Morris, Blackwell Puts His

Prejudice on Display, Plain Dealer, Oct. 26, 2004, at B9 (alteration in original). Leaders from many prominent groups supporting the

Constitutional Amendment expressed similar views. See, e.g., Alan

Johnson, Homosexuality Should Be Crime, Proponent of State Issue 1 Says,

Columbus Dispatch, Oct. 9, 2004, at B5 (Patrick Johnson, vice chairman of the Constitution Party of Ohio: “Even if Ohio would be better off [with gay marriage], gays should not be allowed to marry, . . . Ohio would be better off if we had slavery, but that’s not tolerated by Christians.”); Darrel Rowland

& Jonathan Riskind, On ‘Values,’ a Bitter Fight, Columbus Dispatch, Oct.

24, 2004, at B1 (Mark Harrington, president of Reform America: “Killing

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babies, destroying embryos and permitting homosexuals to marry are not mainstream family values.”); James Dao, Flush with Victory, Grass-Roots

Crusader Against Same-Sex Marriage Thinks Big, N.Y. Times, Nov. 26,

2004, at A28 (Phil Burress, president and chairman of the Ohio Campaign to

Protect Marriage: “[T]he gay agenda . . . would lead to homosexuality being taught in schools as equal to heterosexuality” and is therefore a “threat to . . . fundamentalist Christian beliefs and traditional family values.”).

These statements reflect impermissible animus toward gay and lesbian couples. See Windsor, 133 S. Ct. at 2693 (discussing the necessity of

“careful consideration” in “determining whether [discriminatory laws are] motivated by an improper animus or purpose”). The term “animus” for equal protection purposes does not necessarily mean that an individual must have overt hatred or hostility toward gay people. Animus can reflect instead an “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). In other words, animus can be demonstrated as a result of fundamental changes in the societal understanding over time of gay people and their relationships. See

Lawrence v. Texas, 539 U.S. 558, 579 (2003) (“[T]imes can blind us to

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certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”); Transcript of Oral Argument at

106, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (“Chief

Justice Roberts: ‘84 Senators based their vote on moral disapproval of gay

people?’ Ms. Kaplan: ‘No . . . I think what is true, Mr. Chief Justice, is that

times can blind, and that back in 1996 people did not have the understanding

that they have today.’”).12

In Windsor, the Supreme Court concluded that a statement in the 1996 House Report for DOMA containing similar “moralistic” language disapproving of gay people supported the conclusion that DOMA was unconstitutional. See Windsor, 133 S. Ct. at 2693 (“The House concluded that DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional

(especially Judeo-Christian) morality.’” (citation omitted)). So too here.

The “warnings” from 2004 stating that passage of the Constitutional

Amendment in Ohio was necessary make it absolutely clear that a

12 Animus can, in fact, even result from a misunderstanding related to one’s own family. For example, Senator Rob Portman of Ohio, who voted in favor of DOMA, revealed recently that his position on gay marriage—once “rooted in [his] faith tradition that marriage is a sacred bond between a man and a woman”—changed upon learning that his own son is gay. Rob Portman, Op-Ed., Gay Couples Also Deserve Chance To Get Married, Columbus Dispatch, Mar. 15, 2013.

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constitutionally impermissible motive—i.e., moral disapproval of gay people—was a motivating force behind the Constitutional Amendment. See id. at 2694 (“The stated purpose of the law was to promote an ‘interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.’” (citation omitted)).

While the State and several amici curiae on the other side argue that Ohio voters were motivated by rationales other than moral disapproval or animus,13 the Supreme Court has made it clear that the existence of animus, or moral disapproval, by at least some of an anti-gay law’s backers is a highly relevant concern. See Romer, 517 U.S. at 632 (“[T]he amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”);

Lawrence, 539 U.S. at 583 (2003) (O’Connor, J., concurring) (“Moral disapproval of a group cannot be a legitimate government interest under the

Equal Protection Clause because legal classifications must not be ‘drawn for

13 See, e.g., Brief for Amicus Curiae Eagle Forum Education & Legal Defense Fund in Support of Appellant in Support of Reversal at 24–26, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 18, 2014); Amicus Curiae Brief of Citizens for Community Values in Support of Defendants- Appellants and Reversal at 24–25, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 17, 2014); Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Declaratory and Permanent Injunction at 39, Obergefell v. Wymyslo, No. 13-0501 (S.D. Ohio Nov. 18, 2013).

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the purpose of disadvantaging the group burdened by the law.’” (citation

omitted)).14

After all, the Supreme Court in Windsor made no attempt to

track the vote of each Congressman and Senator who voted for DOMA.

And obviously, it would be impossible for any court to do so since no human can ever know what was in the hearts or minds of every legislator or voter who voted in favor of a law. But the Supreme Court has now made it clear that this kind of psychological or philosophical analysis is not only unnecessary, but beside the point. In Windsor, the very fact that there was significant evidence of unconstitutional animus directed toward gay people was enough. Windsor, 133 S. Ct. at 2693 (“The House concluded that

DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially

Judeo-Christian) morality.’ The stated purpose of the law was to promote an

‘interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.’” (citations omitted)); see also Transcript

14 Moreover, to the extent a plaintiff raising an equal protection claim must show discriminatory intent, evidence of animus is profoundly relevant. See Schuette v. Coal. to Defend Affirmative Action, No. 12-682, slip op. at 3 (U.S. Apr. 22, 2014) (Scalia, J., concurring) (explaining that a plaintiff alleging an equal protection violation from facially neutral state action must prove intent and causation (citing Washington v. Davis, 426 U.S. 229 (1976))).

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of Oral Argument at 74, United States v. Windsor, 133 S. Ct. 2675 (2013)

(No. 12-307) (“Mr. Clement: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.”).

The sheer breadth of the Ohio laws at issue here further demonstrates their unconstitutionality. The laws here preclude any recognition of relationships between gay and lesbian couples and deprive those couples of any and all rights and benefits to which they would have been entitled if they were not gay. See Windsor, 133 S. Ct. at 2693 (“In determining whether a law is motivated by an improper animus or purpose,

‘discriminations of an unusual character’ especially require careful consideration.” (citing Romer, 517 U.S. at 633)). None of the various rationales proffered by the State would support the laws of such vast scope here. In Ohio now, as in Colorado before Romer, “[t]he breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them.” Romer, 517 U.S. at 635. Significantly, as discussed above, the Constitutional Amendment and Section 3101.01 even include a bar against imposing any “duties” on gay couples, such as those imposed upon straight couples under the ethics laws. There could be no possible explanation for these exclusions of gay people other than irrational

27 Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 37

animus. The far-reaching nature of the Ohio laws thus only reinforces the

conclusion that the “sheer breadth” of the challenged laws “is so discontinuous with the reasons offered for [them] that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.

In Romer, the Supreme Court articulated this exact same principle—the Court there observed that the Colorado amendment at issue was unconstitutional because it “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination. . . . Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. . . . This is so no matter how local or discrete the harm, no matter how public and widespread the injury.” Romer,

517 U.S. at 627, 631. The Ohio laws at issue here similarly establish a

permanent, perpetual caste system of discrimination, or “skim-milk”

citizenship, for gay people in the State of Ohio. As the Supreme Court has

made clear, “[i]t is not within our constitutional tradition to enact laws of

this sort.” Romer, 517 U.S. at 633.

IV. There Can Be No Possible Rational Basis for Denying Recognition of a Gay Couple’s Marriage on a Death Certificate Finally, this case has been litigated as if it were necessary to conclude that Ohio’s ban on performing gay marriages, and its refusal to

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recognize those marriages performed out-of-state as valid for all purposes, were unconstitutional. To be sure, as this brief and that of the Plaintiffs demonstrate, those propositions are indubitably correct.

But it is also correct that there is a much narrower basis on which this Court may affirm the judgment for the Plaintiffs and require that the State amend the death certificates at issue to reflect that the decedents were “married.”

Plaintiffs here are not seeking any state-conferred benefit in this case. All they wish is for the State to correct the facts asserted on the relevant death certificates so that they are true, and not false. Both decedents were, in fact, lawfully married under the state laws where their marriages were performed, and it is impossible for Ohio to alter that fact.

That is because, even accepting every rationale offered by the State and its amici to justify banning gay marriages, none of them has even the most remote—i.e., rational—connection with what Defendants did here. In other words, it is nothing short of absurd to contend that refusing to state that a decedent was “married” to his or her gay spouse can possibly influence child rearing, or the willingness of straight couples to marry, or even offend tradition. See Brief of Appellant Lance D. Himes at 46–52, Obergefell v.

Himes, No. 14-3057 (6th Cir. Apr. 10, 2014); Amicus Curiae Brief of

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Citizens for Community Values in Support of Defendants-Appellants and

Reversal at 15–25, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 18,

2014).

Actions, however, speak louder than words. Ohio’s decision to reject Plaintiffs’ reasonable request to correct factually inaccurate death certificates, to defend that decision in the underlying matter, and then to appeal that ruling to this Court reveals what is really going on here. Ohio’s effort to apply Article XV, section 11 of its Constitution to the facts of this case leaves no doubt that the true reason behind that amendment is animus against gay people. There is no other explanation, and for that reason alone the judgment of the district court below should be affirmed.

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CONCLUSION The judgment of the district court below should be affirmed.

Dated: May 1, 2014

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

/s/ Roberta A. Kaplan

Roberta A. Kaplan, Esq. Jaren Janghorbani, Esq. Joshua D. Kaye, Esq. Jacob H. Hupart, Esq. 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 [email protected]

BAKER & HOSTETLER LLP

Thomas D. Warren, Esq. PNC Center 1900 East 9th Street, Suite 3200 Cleveland, OH 44114-3482 (216) 621-0200 [email protected]

Alan B. Morrison, Esq. George Washington University Law School 2000 H Street, N.W. Washington, D.C. 20052 (202) 994-7120 [email protected]

31 Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 41

CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,875 words, excluding the

parts of the brief exempted by Fed. R. App. P. 23(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced

typeface using Microsoft Word in 14-point Times New Roman font.

Date: May 1, 2014

/s/ Roberta A. Kaplan

Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 42

CERTIFICATE OF SERVICE

I hereby certify that on the 1st of May, 2014, a true, correct and complete copy of the foregoing was filed with the Court and served upon all counsel of record on the same day via the Court’s ECF system:

/s/ Roberta A. Kaplan