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Supreme Court of the United States No. _________ Supreme Court of the United States dBRITTANI HENRY, et al., Petitioners, —v.— RICHARD HODGES, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH, Respondent. JAMES OBERGEFELL, et al., Petitioners, —v.— RICHARD HODGES, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOINT PETITION FOR A WRIT OF CERTIORARI Susan L. Sommer Alphonse A. Gerhardstein M. Currey Cook Counsel of Record Keith Hammeran Jennifer L. Branch LAMBDA LEGAL DEFENSE Jacklyn Gonzales Martin & EDUCATION FUND, INC. Adam Gingold Gerhardstein 120 Wall Street, 19th Floor GERHARDSTEIN New York, NY 10005 & BRANCH CO. LPA Counsel for Henry Petitioners 423 Walnut Street, #400 Cincinnati, OH 45202 James D. Esseks (513) 621-9100 Chase B. Strangio [email protected] Steven R. Shapiro AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10004 Counsel for Obergefell Petitioners (Counsel continued on inside cover) Jon W. Davidson Freda J. Levenson LAMBDA LEGAL DEFENSE Drew S. Dennis AND EDUCATION FUND, INC. ACLU OF OHIO, INC. 4421 Wilshire Boulevard, 4506 Chester Avenue Suite 280 Cleveland, OH 44103 Los Angeles, CA 90010 Counsel for Obergefell Paul D. Castillo Petitioners LAMBDA LEGAL DEFENSE Lisa T. Meeks & EDUCATION FUND, INC. NEWMAN & MEEKS CO., LPA 3500 Oak Lawn Avenue, Suite 500 215 East Ninth Street, Suite 650 Dallas, TX 75219 Cincinnati, OH 45202 Ellen Essig Counsel for All Petitioners 105 East Fourth Street, Suite 400 Cincinnati, OH 45202 Counsel for Henry Petitioners QUESTIONS PRESENTED 1. Whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. 2. Whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution. i PARTIES TO THE PROCEEDING This petition seeks Supreme Court review of two cases challenging the State of Ohio’s constitutional and statutory bans on recognition of valid, out-of- state marriages between persons of the same sex, as well as to the State’s refusal to recognize an out-of- state judgment of adoption issued to a same-sex couple. Petitioners from Obergefell v. Himes are James Obergefell, David Brian Michener, and Robert Grunn. Petitioners from Henry v. Himes are Brittani Henry and Brittni Rogers, Georgia Nicole Yorksmith and Pamela Yorksmith, Kelly Noe and Kelly McCracken, and Joseph J. Vitale and Robert Talmas and their son—Adopted Child Doe. Petitioners were all plaintiffs in the District Court and appellees in the Court of Appeals. Respondent is Richard Hodges, who in the course of the litigation replaced formerly named defendant Lance D. Himes as Director of the Ohio Department of Health (“Director”). He is sued in his official capacity only. An official serving as Director has been a defendant in the District Court and appellant in the Court of Appeals in both Obergefell and Henry. The following persons or entities also were parties to proceedings below, but are no longer parties: John Arthur, spouse of Petitioner James Obergefell, was a plaintiff in the District Court in Obergefell, but passed away prior to the final judgment. ii Adoption S.T.A.R., Inc. was a plaintiff in the District Court in Henry and dismissed from the action, and was an appellee before the Sixth Circuit, but does not join this petition. Ohio Governor John Kasich and Ohio Attorney General Mike DeWine were defendants in the District Court in Obergefell, but were voluntarily dismissed from the case prior to the final judgment. Theodore E. Wymyslo, M.D., in his former capacity as Director of the Ohio Department of Health, was a defendant in the District Court in Obergefell, but was substituted by Lance Himes, his successor as Director, in the appellate court. Himes in turn was succeeded as Director by Richard Hodges, who has been substituted as current Respondent. Camille Jones, M.D., in her official capacity as Registrar of the City of Cincinnati Health Department Office of Vital Records, was a defendant in the District Court, but did not appeal from the final judgment. iii TABLE OF CONTENTS QUESTIONS PRESENTED ........................................ i PARTIES TO THE PROCEEDING ........................... ii TABLE OF AUTHORITIES ...................................... vi JOINT PETITION FOR WRIT OF CERTIORARI .... 1 OPINIONS BELOW ................................................... 1 JURISDICTION .......................................................... 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................... 2 STATEMENT OF THE CASE .................................... 4 REASONS FOR GRANTING THE JOINT PETITION ................................................................. 18 I. The Sixth Circuit Ruling Creates a Split Among the Circuits on the Rights of Same-Sex Couples to Recognition of Their Marriages, Deciding Incorrectly a Constitutional Question of Pressing Nationwide Importance. .................... 19 II. The Sixth Circuit Ruling Exacerbates a Split Among the Circuits on a Second Important Question, the Full Faith and Credit Due a Sister State’s Adoption Decree. ........................ 30 CONCLUSION .......................................................... 33 APPENDIX................................................................ 1a Opinion, United States Court of Appeals for the Sixth Circuit, November 6, 2014 .................. 1a-106a Order, United States District Court for the Southern District of Ohio, April 14, 2014 ............................................ 107a-160a iv Order, United States District Court for the Southern District of Ohio, December 23, 2013 ................................... 161a-221a. v TABLE OF AUTHORITIES CASES Adar v. Smith, 639 F.3d 146 (5th Cir.), cert. denied, 132 S. Ct. 400 (2011) ............................................. 30 Baker v. General Motors Corp., 522 U.S. 222 (1998) ............................................... 32 Baker v. Nelson, 409 U.S. 810 (1972) ................................... 14, 21, 22 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert. denied, 135 S. Ct. 316 (2014) ................. passim Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135 S. Ct. 271 (2014) ............ 19, 21, 22 Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, 135 S. Ct. 308 (2014) ................. passim Bowen v. Gilliard, 483 U.S. 587 (1987) ............................................... 25 Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................... 22 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................... 25 Estin v. Estin, 334 U.S. 541 (1948) ............................................... 32 Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) ............................. 30 Frontiero v. Richardson, 411 U.S. 677 (1973) ............................................... 18 Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................... 23, 24 vi Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................... 19 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 135 S. Ct. 265 (2014) ................. passim Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) ..................................... passim Lawrence v. Texas, 539 U.S. 558 (2003) ................................... 22, 23, 28 Loving v. Virginia, 388 U.S. 1 (1967) ............................................ passim M.L.B. v. S.L.J., 519 U.S. 102 (1996) ................................................. 4 Mathews v. Lucas, 427 U.S. 495 (1976) ............................................... 31 Turner v. Safley, 482 U.S. 78 (1987) ................................................. 15 United States v. Virginia, 518 U.S. 515 (1996) ............................................... 26 United States v. Windsor, 133 S. Ct. 2675 (2013) ......................... 20, 24, 25, 27 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) ....................... 25 Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................... 4, 15, 23 STATUTES U.S. Const. amend. XIV, § 1 .............................. passim 42 U.S.C. § 1983 ........................................................ 13 Ohio Const. art. XV, § 11 .................................... 1, 3, 5 vii Ohio Rev. Code § 3101.01(C) .................................. 1, 3 Ohio Rev. Code § 3101.01(C)(2) .................................. 5 Ohio Rev. Code § 3705.22 ......................................... 14 Ohio Rev. Code §3705.12(A)-(B) ............................... 32 OTHER AUTHORITIES Marriage Rulings in the Courts, Freedom to Marry, http://www.freedomtomarry.org/pages/marriage- rulings-in-the-courts (last updated Nov. 12, 2014) ................................. 20 States, Winning the Freedom to Marry: Progress in the States, Freedom to Marry, http://www.freedomtomarry.org/states/ (last updated Nov. 6, 2014) ................................... 18 viii JOINT PETITION FOR WRIT OF CERTIORARI James Obergefell, David Brian Michener, Robert Grunn, Brittani Henry, Brittni Rogers, Georgia Nicole Yorksmith, Pamela Yorksmith, Kelly Noe, Kelly McCracken,
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