Lambda Legal Amicus Brief

Case No. 14-3057

In the United States Court of Appeals for the Sixth Circuit

JAMES OBERGEFELL, ET AL.

PLAINTIFFS – APPELLEES

V.

LANCE D. HIMES, IN HIS OFFICIAL CAPACITY AS THE INTERIM DIRECTOR OF THE

OHIO DEPARTMENT OF HEALTH

DEFENDANT – APPELLANT

________________________

Appeal from the U.S. District Court for the Southern District of Ohio

(Western Division Cincinnati)

Civil Case No. 1:13-CV-00501

BRIEF AMICUS CURIAE OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

SUPPORTING PLAINTIFFS-APPELLEES AND AFFIRMANCE

GREGORY R. NEVINS

Lambda Legal Defense and Education

Fund, Inc.

730 Peachtree St. NE, Suite 1070

Atlanta, GA 30308

404-897-1880

[email protected]

SUSAN L. SOMMER


Fund, Inc.

120 Wall Street, 19th Floor

New York, NY 10005

212-809-8585

[email protected]

CAMILLA B. TAYLOR


Fund, Inc.

105 W. Adams, 26th Floor

Chicago, IL 60603

312-663-4413

[email protected]

Case: 14-3057 Document: 65 Filed: 05/01/2014 Page: 1

6CA-18/08 Page 1 of 2

UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliationsand Financial Interest

Sixth CircuitCase Number: Case Name:

Name of counsel:

Pursuant to 6th Cir. R. 26.1, Name of Party

makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below theidentity of the parent corporation or affiliate and the relationship between it and the namedparty:

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interestin the outcome? If yes, list the identity of such corporation and the nature of the financialinterest:

CERTIFICATE OF SERVICE

I certify that on _____________________________________ the foregoing document was served on allparties 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/

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.


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TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL

INTEREST

TABLE OF AUTHORITIES .................................................................................... ii

AMICUS’S IDENTITY, INTERESTS, AND AUTHORITY TO FILE ................... 1

SUMMARY OF ARGUMENT ................................................................................. 2

ARGUMENT ............................................................................................................. 6

I. The Fundamental Right To Marry Applies To Same-Sex

Spouses. ................................................................................................. 6

II. Ohio’s Refusal To Recognize Existing Marriages Of

Same-Sex Couples Entered Out Of State Violates

Constitutionally-Protected Fundamental Marriage Rights. ................ 13

III. Neither The Full Faith And Credit Clause Nor Section 2

Of DOMA Excuses Ohio’s Violation Of Plaintiffs’ Due

Process Rights. .................................................................................... 26

IV. Ohio’s Marriage Recognition Bans Are Subject To Strict

Scrutiny. .............................................................................................. 27

CONCLUSION ........................................................................................................ 28

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)



ii

TABLE OF AUTHORITIES

CASES

Boddie v. Connecticut,

401 U.S. 371 (1971) ............................................................................................ 10

Bostic v. Rainey,

No. 2:13cv395,

2014 U.S. Dist. LEXIS 19110 (E.D. Va. Feb. 13, 2014) ................................... 10

Bourke v. Beshear,

No. 3:13-CV-750-H,

2014 U.S. Dist. LEXIS 17457 (W.D. Ky. Feb. 12, 2014) .................................. 14

Bowers v. Hardwick,

478 U.S. 186 (1986) ...................................................................................... 10, 11

Cook v. Cook,

104 P.3d 857 (Ariz. Ct. App. 2005) .................................................................... 23

De Leon v. Perry,

No. SA-13-CA-00982-OLG,

2014 U.S. Dist. LEXIS 26236 (W.D. Tex. Feb. 26, 2014) .......................... 14, 27

Dennis v. R.R. Ret. Bd.,

585 F.2d 151 (6th Cir. 1978) .............................................................................. 19

Eisenstadt v. Baird,

405 U.S. 438 (1972) .............................................................................................. 9

Graham v. Richardson,

403 U.S. 365 (1971) ............................................................................................ 27

Griswold v. Connecticut,

381 U.S. 479 (1965) .............................................................................. 3, 9, 15, 18


iii

Henry v. Himes,

No. 1:14-cv-129,

2014 U.S. Dist. LEXIS 51211 (S.D. Ohio Apr. 14, 2014) ..........................passim

Hesington v. Estate of Hesington,

640 S.W.2d 824 (Mo. Ct. App. 1982) ................................................................ 23

Hodgson v. Minnesota,

497 U.S. 417 (1990) .............................................................................................. 8

In re Lenherr Estate,

314 A.2d 255 (Pa. 1974) ..................................................................................... 18

In re Miller’s Estate,

214 N.W. 428 (Mich. 1927) .......................................................................... 21, 22

In re Stiles Estate,

391 N.E.2d 1026 (Ohio 1979) ............................................................................ 20

Keith v. Pack,

187 S.W.2d 618 (Tenn. 1945) ...................................................................... 20, 21

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013)................................................................. 10

Laikola v. Engineered Concrete,

277 N.W.2d 653 (Minn. 1979) ........................................................................... 23

Lawrence v. Texas,

539 U.S. 558 (2003) .....................................................................................passim

Loving v. Virginia,

388 U.S. 1 (1967) .........................................................................................passim

Madewell v. United States,

84 F. Supp. 329 (E.D. Tenn. 1949) ..................................................................... 16

Mazzolini v. Mazzolini,

155 N.E.2d 206 (Ohio 1958) .............................................................................. 19


iv

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ............................................................................................ 15

Miller v. Lucks,

36 So. 2d 140 (Miss. 1948) ................................................................................. 24

Montgomery v. Carr,

101 F.3d 1117 (6th Cir. 1996) ........................................................................ 8, 27

Moore v. City of East Cleveland,

431 U.S. 494 (1977) .............................................................................................. 7

Obergefell v. Wymyslo,

962 F. Supp. 2d 968 (S.D. Ohio 2013) ................................................... 14, 20, 28

Peefer v. State,

182 N.E. 117 (Ohio Ct. App. 1931) .................................................................... 21

Pennegar v. State,

10 S.W. 305 (Tenn. 1888)................................................................................... 22

Planned Parenthood v. Casey,

505 U.S. 833 (1992) .............................................................................................. 9

Reno v. Flores,

507 U.S. 292 (1993) ............................................................................................ 27

Rhodes v. McAfee,

457 S.W.2d 522 (Tenn. 1970) ............................................................................ 23

Roberts v. United States Jaycees,

468 U.S. 609 (1984) ............................................................................................ 8

Romer v. Evans,

517 U.S. 620 (1996) .............................................................................................. 1

Saenz v. Roe,

526 U.S. 489 (1999) ............................................................................................ 27


v

Santosky v. Kramer,

455 U.S. 745 (1982) ............................................................................................ 25

Schick v. United States,

195 U.S. 65 (1904) .............................................................................................. 26

State v. Bell,

66 Tenn. 9 (1872) ................................................................................................ 23

State v. Lilly,

717 N.E.2d 322 (Ohio 1999) .............................................................................. 13

Stevenson v. Gray,

56 Ky. 193 (Ky. Ct. App. 1856) ................................................................... 20, 21

Turner v. Safley,

482 U.S. 78 (1987) .............................................................................. 9, 11, 12, 15

United States v. Windsor,

133 S. Ct. 2675 (2013) .................................................................................passim

U.S. Citizens Ass’n v. Sebelius,

705 F.3d 588 (6th Cir. 2013) .............................................................................. 12

Varnum v. Brien,

763 N.W.2d 862 (Iowa 2009) ............................................................................... 1

Washington v. Glucksberg,

521 U.S. 702 (1997) .....................................................................................passim

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989) .............................................................................................. 7

Williams v. North Carolina,

317 U.S. 287 (1942) ...................................................................................... 17, 18

Youngberg v. Romeo,

457 U.S. 307 (1982) .............................................................................................. 9


vi

Zablocki v. Redhail,

434 U.S. 374 (1978) .................................................................................. 7, 10, 15

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

28 U.S.C. § 1738C ..................................................................................................... 6

Fed. R. App. P. 29(a) ................................................................................................. 1

Fed. R. App. P. 29(c)(5) ............................................................................................. 1

Ohio Const. art. XV, § 11 .......................................................................................... 2

Ohio Rev. Code § 3101.01 ......................................................................................... 8

Ohio Rev. Code § 3101.01(C) ................................................................................... 2

Ohio Rev. Code § 3101.06 ......................................................................................... 8

OTHER AUTHORITIES

1 Joel Prentiss Bishop, New Commentaries on Marriage,

Divorce, and Separation (1891) ......................................................................... 16

Fletcher W. Battershall, The Law of Domestic Relations

in the State of New York (1910) .......................................................................... 17

Nancy F. Cott, A History of Marriage and the Nation (2000) ................................ 13

Barbara J. Cox, Same-Sex Marriage and the Public Policy

Exception in Choice-of-Law: Does It Really Exist?,

16 Quinnipiac L. Rev. 61 (1996) ............................................................ 22, 23, 24

Michael Grossberg, Governing the Hearth: Law and the Family

in Nineteenth-Century America (1985) .............................................................. 21

Joanna Grossman, Resurrecting Comity: Revising the Problem

of Non-Uniform Marriage Laws, 84 Or. L. Rev. 433 (2005) ............................. 18


vii

Virginia L. Hardwick, Punishing the Innocent: Unconstitutional

Restrictions on Prison Marriage and Visitation,

60 N.Y.U. L. Rev. 275 (1985) ............................................................................ 10

Andrew Koppelman, Symposium, Interstate Recognition

of Same-Sex Marriages and Civil Unions: A Handbook

for Judges, 153 U. Pa. L. Rev. 2143 (2005) ....................................................... 24

Joseph R. Long, Law of Domestic Relations (1905) ............................................... 22

Cyrus E. Phillips IV, Miscegenation: The Courts and the

Constitution, 8 Wm. & Mary L. Rev. 133 (1966) .............................................. 13

William M. Richman & William L. Reynolds, Understanding

Conflict of Laws (3d ed. 2002) ........................................................................... 19

James Schouler, A Treatise on the Law of Domestic

Relations (2d ed. 1874) ....................................................................................... 17

Joseph William Singer, Same Sex Marriage, Full Faith and

Credit, and the Evasion of Obligation, 1 Stan. J. C.R. &

C.L. 1 (2005) ................................................................................................. 19, 24

Joseph Story, Commentaries on the Conflict of Laws

(8th ed. 1883) ...................................................................................................... 17


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AMICUS’S IDENTITY, INTERESTS, AND AUTHORITY TO FILE1

Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal” or

“Amicus”) is a non-profit national organization committed to achieving full

recognition of the civil rights of lesbian, gay, bisexual, and transgender people and

those living with HIV through impact litigation, education, and public policy work.

Lambda Legal has participated as party or amicus counsel in numerous challenges

to state laws prohibiting same-sex couples from marrying or receiving legal respect

for their existing marriages, including as plaintiffs’ counsel in Henry v. Himes, No.

1:14-cv-129, 2014 U.S. Dist. LEXIS 51211 (S.D. Ohio Apr. 14, 2014), declaring

the same laws at issue here facially unconstitutional, and Varnum v. Brien, 763

N.W.2d 862 (Iowa 2009), declaring Iowa’s marriage ban unconstitutional.

Lambda Legal has participated in the leading Supreme Court cases redressing

sexual orientation discrimination, as party counsel in Romer v. Evans, 517 U.S.

620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), and as amicus in United

States v. Windsor, 133 S. Ct. 2675 (2013). Lambda Legal has both an interest in

1 All parties have consented to the filing of this brief. See Fed. R. App. P.

29(a).

No party’s counsel authored the brief in whole or in part; no party or party’s

counsel contributed money intended to fund preparing or submitting this brief;

and no person other than Amicus, its members, or its counsel contributed

money intended to fund preparing or submitting the brief. See Fed. R. App. P.

29(c)(5).


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protecting lesbian and gay couples and their children in every state of the nation

and extensive expertise in the issues before this Court.

Amicus fully agrees with all grounds Plaintiffs have advanced to strike down

article XV, § 11 of the Ohio Constitution and Ohio Rev. Code § 3101.01(C),

Ohio’s bans on recognition of out-of-state marriages of same-sex couples (the

“marriage recognition bans” or “bans”). This brief focuses on the bans’

infringement of fundamental substantive due process marriage rights, which

requires that the bans be subject to strict scrutiny.

SUMMARY OF ARGUMENT

Recognizing that lesbian and gay individuals share the same fundamental

right to marry that all others enjoy, a growing number of states around the country

have opened marriage to same-sex couples, conferring on these newlywed couples

“a dignity and status of immense import.” Windsor, 133 S. Ct. at 2681. Plaintiffs

Obergefell and Michener, and their now-deceased spouses, sought the full dignity,

status, and legal protections that come with marriage when they wed in states that

opened their doors to same-sex couples. Had they married different-sex spouses,

Ohio would have welcomed the newlyweds home with open arms, granting full

legal recognition to their marriages. Ohio’s legislative and constitutional bans on

recognition of out-of-state marriages for same-sex couples, both enacted in 2004,

deprive Plaintiffs of the right to due process protected under the Fourteenth


3

Amendment to the U.S. Constitution. For this reason and the others described by

the court below and in Plaintiffs’ brief, Ohio’s marriage recognition bans should be

struck down.

The well-settled fundamental right to marry is about far more than obtaining

a marriage license and having a wedding ceremony – important as these are as the

gateway to the institution of marriage. The constitutionally-guaranteed right to

marry would be worthless if the government were free to refuse all recognition to a

couple’s marriage once entered, effectively annulling the marriage as if it had

never occurred. Only when the wedding is over, the guests are gone, and the

couple returns home as spouses does marriage as “a way of life” commence.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965). In the words of the Supreme

Court, marriage is an “enduring” bond, a commitment to remain “together for

better or for worse,” “a bilateral loyalty,” “an association for [a] noble . . .

purpose.” Id. This constitutionally-protected “status is a far-reaching legal

acknowledgment of the intimate relationship between two people,” Windsor, 133

S. Ct. at 2692, a commitment of enormous import that spouses carry wherever they

go throughout their married lives. But as soon as married same-sex couples set

foot in Ohio, the State’s marriage recognition bans strip them of their rights and

dignity as married spouses. The bans strike at the heart of the right to be married,


4

violating the fundamental due process and equal protection rights of lesbian and

gay spouses.

As an initial matter, Defendant wrongly attempts to recast the right to marry

asserted here as a “new” right solely to marry a person of the same sex. Loving v.

Virginia, 388 U.S. 1 (1967), establishes that a state violates its residents’ right to

marry if it refuses recognition to their marriages based on unjustified disagreement

with a person’s choice of spouse, no matter how steeped in history and tradition

that disagreement is. In this respect, Loving is but one in a long line of cases

establishing that courts define fundamental rights by the nature of the liberty

sought, not the identity of the person invoking it. And this point is underscored,

not undermined, by Washington v. Glucksberg, which exhorts courts to rely on

“guideposts for responsible decisionmaking.” 521 U.S. 702, 720 (1997).

Marriage is an enduring relationship carrying tremendous legal, financial,

cultural, and personal significance for any couple who enters into it. A married

couple can expect to have myriad interactions with governments, private parties,

and one another over the course of the marriage, and, as this case so poignantly

illustrates, even after the death of one spouse. Throughout these interactions, a

person’s status as a present or former spouse remains critical. In recognition of the

monumental importance of this enduring status, the settled rule applied for

centuries throughout our nation has been to accord universal recognition across


5

state lines to a marriage valid where celebrated, even if the marriage could not be

legally celebrated in the forum jurisdiction. This universal rule of interstate

marriage recognition, while cast as a comity rather than a constitutional principle,

is an essential point in the constellation of protections accorded the institution of

marriage. As the Supreme Court understood in ruling that Virginia’s ban on

recognition of the Lovings’ out-of-state interracial marriage violated due process,

Loving, 388 U.S. at 12, the recognition by one government of a marital status

obtained in another is “implicit in the concept of ordered liberty,” Glucksberg, 521

U.S. at 721 (internal quotations and citations omitted).

A person’s right to carry his or her marriage and marital status wherever the

person goes in this nation accords spouses and their children the dignity of a

legally-respected and universally-understood relationship. It ensures predictability

and stability for the spouses, their children, employers, and others with whom the

couple interacts. This right reflects the intent and expectations of couples who

have legally married. It also reflects the reality that the state of celebration has

bestowed on the couple the enduring status of being “married” under its laws.

Under the traditional place-of-celebration standard, any couple that has entered

into a valid marriage can count on being respected as married by the federal and

state governments, regardless of where the couple may live or relocate.


6

Although the states’ longstanding, uniform place-of-celebration rule has

commonly included an articulated exception for marriages contrary to the strong

public policy of the state, in practice, this exception has rarely applied to void a

marriage valid where entered. Our nation’s history and tradition of extensive state

recognition of marriages entered elsewhere, even if the marriages could not have

been legally obtained in the forum state, reflects the depth of the liberty interest we

all share in having our marriages universally respected.

Furthermore, neither the Full Faith and Credit Clause nor Section 2 of the

Defense of Marriage Act (“DOMA”), 28 U.S.C. § 1738C, insulates Ohio’s

marriage recognition bans from due process challenge. Ohio’s deprivation of

Plaintiffs’ protected rights is subject to heightened scrutiny, a standard the bans

cannot meet.

ARGUMENT

I. The Fundamental Right To Marry Applies To Same-Sex Spouses.

This Court can decide this case without reaching the fundamental right to

marry itself and the protection it affords to same-sex couples. Nonetheless, Ohio’s

marriage recognition bans strike at the heart of the fundamental right to marry,

purporting to erase Plaintiffs’ marriages to their beloved departed spouses.

In case after case, the Supreme Court has reaffirmed not only the right to

enter into the institution of marriage, but also an aspect of that right which makes it


7

most cherished and meaningful, the right to marry the one you love. The Court has

made clear that freedom of choice of whom to marry is a critical component of that

right. These cases demonstrate the Constitution’s respect for our autonomy to

make the personal decisions at stake here – decisions about with whom a person

will build a life and a family. Moreover, “the Supreme Court has consistently

adhered to the principle that a fundamental right, once recognized, properly

belongs to everyone.” Henry, 2014 U.S. Dist. LEXIS 51211, at *29. Fundamental

rights are thus defined by the nature of the liberty sought, not by who seeks to

exercise the liberty.

The right to marry has long been recognized as fundamental, protected under

the due process guarantee, because deciding whether and whom to marry is exactly

the kind of personal matter about which government should have little say.

Webster v. Reprod. Health Servs., 492 U.S. 490, 564-65 (1989) (Stevens, J.,

concurring in part and dissenting in part) (“freedom of personal choice in matters

of marriage and family life is one of the liberties protected by the Due Process

Clause of the Fourteenth Amendment” (emphasis added)); Zablocki v. Redhail,

434 U.S. 374, 387 (1978) (finding burden on right to marry unconstitutional

because it infringed “freedom of choice in an area in which we have held such

freedom to be fundamental” (emphasis added)); Moore v. City of East Cleveland,

431 U.S. 494, 499 (1977). Indeed, “[t]he freedom to marry has long been


8

recognized as one of the vital personal rights essential to the orderly pursuit of

happiness by free men.” Loving, 388 U.S. at 12 (citation omitted); see also

Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996).

Because the right to make personal decisions central to marriage would have

little meaning if the government dictated one’s marriage partner, courts have

placed special emphasis on protecting one’s free choice of spouse. “[T]he

regulation of constitutionally protected decisions, such as where a person shall

reside or whom he or she shall marry, must be predicated on legitimate state

concerns other than disagreement with the choice the individual has made.”

Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (emphasis added); see also

Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984). In keeping with the

right to autonomy in deciding whether and whom to marry, Ohio imposes very few

restrictions on who can marry.2

The scope of a fundamental right is defined by the attributes of the right

itself, and not the identity of the people who seek to exercise it or who have been

excluded from doing so in the past. The Supreme Court has adhered to the

principle that a fundamental right, once recognized, properly belongs to everyone –

2 In Ohio, any adult male can marry any female at least 16 years old who is not

closer than a second degree cousin, so long as both are free of “the influence of

an intoxicating liquor or controlled substance or [] infect[ion] with syphilis in a

form that is communicable or likely to become communicable.” Ohio Rev.

Code §§ 3101.01, 3101.06.


9

regardless of whether a particular claimant can point to a historical tradition

supporting the claimant’s ability to exercise that right. For example, in Youngberg

v. Romeo, 457 U.S. 307, 315-16 (1982), the Supreme Court held that an individual

involuntarily committed to a custodial facility because of a disability retained

liberty interests, including the right to freedom from bodily restraint. The Court

thus departed from the longstanding tradition in which people with serious

disabilities were viewed as not sharing such substantive due process rights and

were routinely subjected to bodily restraints. See also Eisenstadt v. Baird, 405

U.S. 438, 453 (1972) (liberty interest in controlling one’s fertility, previously

recognized for married persons in Griswold, extended equally to unmarried

persons).

Specifically in the context of the fundamental right to marry, the Supreme

Court has rejected attempts to reframe the right narrowly so as to include only

those previously acknowledged to enjoy that liberty. Thus, the fundamental right

to marry could no more be a right to “same-sex marriage” than the right enforced

in Loving was to “interracial marriage,” 388 U.S. 1; or in Turner v. Safley to

“prisoner marriage,” 482 U.S. 78 (1987). And, indeed, neither interracial

marriages nor marriages involving inmates had any longstanding support in our

nation’s traditions. See Planned Parenthood v. Casey, 505 U.S. 833, 847-48

(1992) (“[I]nterracial marriage was illegal in most States in the 19th century, but


10

the Court was no doubt correct in finding it to be an aspect of liberty protected

against state interference by the substantive component of the Due Process Clause

in Loving . . . .”); Virginia L. Hardwick, Punishing the Innocent: Unconstitutional

Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79

(1985) (right to marry as traditionally understood did not extend to prisoners).3

Ohio’s marriage bans should be evaluated for what they are: a burden on the

exercise of the same “existing right [to marry], not the declaration of a new right.”

See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1203 (D. Utah 2013); accord Henry,

2014 U.S. Dist. LEXIS 51211, at *25-28; Bostic v. Rainey, No. 2:13cv395, 2014

U.S. Dist. LEXIS 19110, at *35-38, (E.D. Va. Feb. 13, 2014).

The argument that same-sex couples seek a “new” right rather than the same

right exercised by others makes the identical mistake of Bowers v. Hardwick, 478

U.S. 186 (1986), corrected in Lawrence, 539 U.S. 558. In a challenge by a gay

man to Georgia’s sodomy statute, Bowers recast the right at stake, shared by all, to

consensual intimacy with the person of one’s choice, to a claimed “fundamental

right” of “homosexuals to engage in sodomy.” Id. at 566-67 (quoting Bowers, 478

3 The right to marry traditionally did not include a right to remarriage after

divorce, but that also changed. See Boddie v. Connecticut, 401 U.S. 371, 376

(1971) (violation of due process to impose fees on indigent as condition to seek

divorce, the only way to be free from “prohibition against remarriage”).

Likewise, after Zablocki, 434 U.S. 374, the right to marry could not be

withheld based on a parent’s unwillingness or inability to support children

from a prior relationship.


11

U.S. at 190). Significantly, Lawrence overruled Bowers, holding that Bowers’s

constricted framing “fail[ed] to appreciate the extent of the liberty at stake.”

Lawrence, 539 U.S. at 567.

Defendant’s attempt to limit the fundamental right to marry at issue here to

the right to marry a person of the same sex finds no support in, and indeed is

undermined by, Glucksberg, 521 U.S. 702. Glucksberg does not support

constricting a long-honored fundamental right to deny it to those historically

excluded from the freedom to exercise it. Glucksberg focused on liberty interests

shared by all individuals, not just those in the majority, and found that the liberty

interest advanced for assistance with suicide was not sufficiently grounded in

history to constitute a fundamental right. It is entirely different, and contrary to

constitutional standards, to define a fundamental right so narrowly as to exclude a

group of individuals from sharing it.

Turner, which addressed whether marriage between a prison inmate and an

unincarcerated person qualifies as a “constitutionally protected marital

relationship” despite differences from “traditional” marriages, demonstrates this.

Turner, 482 U.S. at 96. Rather than dismiss the claim in that case because the

union would lack physical companionship, sexual intimacy, and shared short-term

goals, the Court unanimously found that many of the “incidents of marriage, like

the religious and personal aspects of the marriage commitment, are unaffected” by


12

incarceration and “are sufficient to form a constitutionally protected marital

relationship in the prison context.” Id. Indeed, Turner has special resonance in

this case, involving the quest of two widowers seeking nothing more than

recognition on death certificates of their marital commitment to their deceased

spouses. Turner thus definitively established that the fundamental right to marry

does not vanish merely because the state points to an attribute that differs from

prevailing notions of “traditional” marriage.4

The history of marriage in Ohio and other states belies Defendant’s

argument that marriage, as a fundamental right, is understood only in static terms.

For example, marriage laws have undergone substantial changes in past

generations to end subordination of married women and race-based entry

4 Another way of framing this issue is that the exercise urged by Glucksberg in

refining the asserted right must involve legally relevant limitations. See, e.g.,

U.S. Citizens Ass’n v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting

plaintiffs’ assertion that the Affordable Care Act’s individual mandate

“implicate[s] the fundamental liberty right . . . to refuse unwanted medical

care,” and instead recognizing the plaintiffs’ fiscally-focused request as

“protection of economic rights through substantive due process”). Here,

Defendant can offer nothing to justify characterizing the right at issue as a new

“right to same-sex marriage,” except that overwhelming discrimination

prevented lesbian and gay couples from laying claim to their right to marry

until recent years. Ohio’s asserted justifications for differential treatment,

proceeding cautiously and preserving tradition and uniformity, merely

presuppose rather than justify the legitimacy of the historical limitation in the

first place.


13

requirements.5 Marriage laws, through court decisions and legislation, have

undergone profound changes over time and are virtually unrecognizable from the

way they operated a century ago. See generally Nancy F. Cott, A History of

Marriage and the Nation (2000).

And yet, the essence endures. Couples continue to come together, join their

lives, and form new families, and marriage continues to support and stabilize them.

The Supreme Court confirmed in Windsor that the due process guarantee protects

the rights of same-sex couples to the same essential dignity, security, and tangible

legal and financial protections that marriage brings to other families. See 133 S.

Ct. at 2694-97.

II. Ohio’s Refusal To Recognize Existing Marriages Of Same-Sex Couples

Entered Out Of State Violates Constitutionally-Protected Fundamental

Marriage Rights.

The lower court correctly identified a constitutional due process right “not to

be deprived of one’s already-existing legal marriage and its attendant benefits and

5 See State v. Lilly, 717 N.E.2d 322, 325 (Ohio 1999) (“At common law,

husband and wife were regarded as one. The legal existence of the wife during

coverture was merged with that of her husband. As such, the wife was

incapable of making contracts, of acquiring property, or of disposing of

property without her husband’s consent. In pursuance of a more liberal policy

in favor of the wife, statutes were passed across the country to relieve the

married woman from the disabilities imposed upon her as a femme covert by

the common law.”) (citation omitted)); see also Cyrus E. Phillips IV,

Miscegenation: The Courts and the Constitution, 8 Wm. & Mary L. Rev. 133

n.2 (1966) (noting Ohio’s repeal of its anti-miscegenation law in 1887).


14

protections.” Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013).6

This right is a deeply-rooted aspect of the due process protections long accorded to

“existing marital, family, and intimate relationships.” Id.; see also Glucksberg,

521 U.S. at 720. The long line of decisions recognizing the significance of, and

protections accorded, marital relationships would be meaningless if states could

unilaterally refuse to recognize the marriages, once entered, of disfavored groups,

thereby depriving these spouses of their constitutionally-protected liberty.

As the Supreme Court noted in Glucksberg, our “Nation’s history, legal

traditions, and practices” provide guideposts to discern the contours of

constitutionally-protected fundamental liberties. 521 U.S. at 721; see also

Lawrence, 539 U.S. at 571-72 (“[O]ur laws and traditions in the past half century

are of most relevance here.”). The Due Process Clause protects rights “implicit in

the concept of ordered liberty, such that neither liberty nor justice would exist if

they were sacrificed.” Glucksberg, 521 U.S. at 720-21 (internal quotations and

6 See also Henry, 2014 U.S. Dist. LEXIS 51211, at *29-30; De Leon v. Perry,

No. SA-13-CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236, at *62 (W.D. Tex.

Feb. 26, 2014) (noting Windsor’s holding that “out-of-state marriage

recognition . . . was a right protected under the Constitution,” and concluding

likelihood of success that plaintiffs will demonstrate Texas lacked even rational

basis for withholding recognition to same-sex couples’ marriages, in violation

of due process); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 U.S. Dist.

LEXIS 17457, at *22 (W.D. Ky. Feb. 12, 2014) (finding reasoning in Windsor

“about the legitimacy of laws excluding recognition of same-sex marriages []

instructive,” and concluding that Kentucky laws denying recognition of valid

out-of-state marriages of same-sex couples are unconstitutional).


15

citation omitted). Throughout our nation’s “history, legal traditions, and

practices,” marriages, once entered, have been cloaked with a wide swath of

protections. These range from rights in matters of sexual intimacy and

reproduction, Griswold, 381 U.S. 479; to marital presumptions of parentage

shielding the marital family from intrusions even by a marital child’s non-spouse

genetic parent, Michael H. v. Gerald D., 491 U.S. 110, 124 (1989); to access to

“government benefits (e.g. Social Security benefits), property rights (e.g., tenancy

by the entirety, inheritance rights), and other, less tangible benefits.” Turner, 482

U.S. at 96. See also Zablocki, 434 U.S. at 397 n.1 (1978) (Powell, J., concurring)

(“[T]here is a sphere of privacy or autonomy surrounding an existing marital

relationship into which the State may not lightly intrude . . .” (emphasis added)).

Notably, the Supreme Court has made emphatically clear that couples have

fundamental vested rights to have their marriages accorded legal recognition and

protection not just in the jurisdiction where entered, but also across state lines. In

Loving, the Supreme Court struck down not only Virginia’s law prohibiting

interracial marriages within the state, but also its statutes denying recognition to

and criminally punishing such marriages entered outside the state. 388 U.S. at 4,

12. It did so in a case involving a couple already married, who had celebrated

their nuptials in the District of Columbia and then been prosecuted for marrying

out of state on return to their Virginia home. Id. at 2-3. Moreover, the couple had


16

purposely evaded their domicile state’s law in order to enter into a marriage

expressly prohibited and denied recognition there. Significantly, the Court held

that Virginia’s statutory scheme, including its penalties on out-of-state marriages

and voiding of marriages obtained elsewhere, “deprive[d] the Lovings of liberty

without due process of law in violation of the Due Process Clause of the

Fourteenth Amendment.” Id. at 12.

The expectation that one’s marriage, once entered, will be respected

throughout the land is indisputably deeply rooted in “[o]ur Nation’s history, legal

traditions, and practices.” Glucksberg, 521 U.S. at 721. It is so elemental as to be

“implicit in the concept of ordered liberty.” Id. Historically, certainty that a

marital status once obtained will be universally recognized has been understood to

be of fundamental importance both to the individual and to society more broadly:

“for the peace of the world, for the prosperity of its respective communities, for the

well-being of families, for virtue in social life, for good morals, for religion, for

everything held dear by the race of man in common, it is necessary there should be

one universal rule whereby to determine whether parties are to be regarded as

married or not.” 1 Joel Prentiss Bishop, New Commentaries on Marriage,

Divorce, and Separation § 856, at 369 (1891). As one federal court put it 65 years

ago, the “policy of the civilized world [] is to sustain marriages, not to upset them.”

Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949).


17

Accordingly, interstate recognition of marriage has been a defining and

essential feature of American law, enshrined in common law and legislation as a

pillar of domestic relations jurisprudence. The longstanding, universal rule of

marriage recognition dictates that a marriage valid where celebrated is valid

everywhere. See, e.g., Joseph Story, Commentaries on the Conflict of Laws § 113,

at 187 (8th ed. 1883) (“The general principle certainly is . . . that . . . marriage is

decided by the law of the place where it is celebrated.”); Fletcher W. Battershall,

The Law of Domestic Relations in the State of New York 7-8 (1910) (describing

“the universal practice of civilized nations” that the “permission or prohibition of

particular marriages, of right belongs to the country where the marriage is

celebrated”).

Enforcement of this universal rule has long served “public policy, common

morality, and the comity of nations.” James Schouler, A Treatise on the Law of

Domestic Relations 47 (2d ed. 1874). To this day, the place-of-celebration rule

advances critical functions in a nation where a married couple may live in, move

through, and interact with multiple state sovereigns whose marriage laws may

vary. See Williams v. North Carolina, 317 U.S. 287, 299 (1942) (the prospect of

being married in one state and unmarried in another is one of “the most perplexing

and distressing complication[s] in the domestic relations of . . . citizens.” (internal


18

quotations and citation omitted));7 In re Lenherr Estate, 314 A.2d 255, 258 (Pa.

1974) (“In an age of widespread travel and ease of mobility, it would create

inordinate confusion and defy the reasonable expectations of citizens whose

marriage is valid in one state to hold that marriage invalid elsewhere.”).

The rule of recognition protects married couples from frustration of their

reliance upon their marital status. The couple can plan a future together in which

their family’s legal status will remain intact and permanent, regardless of the local

government with which they may interact. It also dissuades married couples from

disavowing their own obligations to each other and to third parties. A couple knits

their lives together through marriage, making promises of support and care “for

better or for worse.” Griswold, 381 U.S. at 486. The place-of-celebration principle

ensures that married spouses cannot repudiate their marital status and their

obligations based on where they are located. It prevents such “perverse results” as

allowing a person “married in one state but technically single and eligible to marry

again across state lines” to engage in “‘legalized polygamy.’” Joanna Grossman,

7 Williams, requiring North Carolina to give full faith and credit to a Nevada

divorce decree in conflict with North Carolina public policy, emphasized the

crucial reasons a single state’s laws must dictate an ongoing status of such

personal significance to the spouses and their children. See 317 U.S. at 300-01.

The Supreme Court in Williams recognized the importance to the couple of a

single clear answer as to their marital status, one that would apply both in

Nevada and North Carolina, and throughout the nation. The guarantee of due

process likewise prohibits subjecting spouses to the discriminatory refusal of

some states to honor their lawfully obtained marital statuses.


19

Resurrecting Comity: Revising the Problem of Non-Uniform Marriage Laws, 84

Or. L. Rev. 433, 472 (2005). This venerable rule “confirms the parties’

expectations, it provides stability in an area where stability (because of children

and property) is very important, and it avoids the potentially hideous problems that

would arise if the legality of a marriage varied from state to state.” William M.

Richman & William L. Reynolds, Understanding Conflict of Laws § 119[c] (3d ed.

2002); see also Joseph William Singer, Same Sex Marriage, Full Faith and Credit,

and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 4-6 (2005) (summarizing

interests underlying place-of-celebration rule).

Ohio’s own history and laws are consistent with the fundamental importance

of the marriage recognition principle in U.S. legal history and tradition. In keeping

with the universal standard, “Ohio follows the rule that the validity of a marriage is

determined by the law of the place where the marriage contract was entered into.”

Dennis v. R.R. Ret. Bd., 585 F.2d 151, 156 (6th Cir. 1978); see Mazzolini v.

Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958) (“It is well settled that the validity of

a marriage must be determined from the lex loci contractus. If valid where

solemnized, it is valid elsewhere; if invalid there, it is invalid everywhere”

(internal quotations and citations omitted) (validating out-of-state first cousin

marriage prohibited in Ohio)). As the lower court found in this case, until Ohio’s

recent enactment of the marriage recognition bans, Ohio always followed this


20

“firmly rooted,” “longstanding legal principle.” Obergefell, 962 F. Supp. 2d at

985, 986 (noting range of marriages prohibited under Ohio law yet nonetheless

historically accorded recognition when celebrated out of state). “[I]t is absolutely

clear that under Ohio law, from the founding of the state through at least 2004, the

validity of a heterosexual marriage is to be determined by whether it complies with

the law of the jurisdiction where it was celebrated,” even if the marriage would

have violated state law if entered in Ohio. Id. at 985.8

The place-of-celebration rule likewise has been a pillar of domestic relations

law in the other states in this Circuit. Thus, “[i]t is . . . understood to be the settled

general rule of law in . . . most, or all, of the United States, and especially in

Kentucky, that a marriage valid by the law of the country where it is celebrated, is

to be held valid in other countries in which the parties may be resident or

domiciled, though it would have been invalid . . . if it had been originally

celebrated there.” Stevenson v. Gray, 56 Ky. 193, 207-08 (Ky. Ct. App. 1856)

(recognizing out-of-state aunt-nephew marriage prohibited within Kentucky); see

also, e.g., Keith v. Pack, 187 S.W.2d 618, 618-19 (Tenn. 1945) (recognizing out-

of-state marriage of 13-year-old, prohibited under Tennessee’s minimum age

8 In re Stiles Estate, 391 N.E.2d 1026 (Ohio 1979), cited by Defendant, is not

to the contrary. Stiles voided an uncle-niece marriage entered within Ohio; it

did not apply the rule of recognition to an out-of-state marriage. Indeed,

Defendant has not cited a single Ohio case departing from the place-of-

celebration standard.


21

requirement); In re Miller’s Estate, 214 N.W. 428, 429 (Mich. 1927) (recognizing

out-of-state marriage of first cousins, prohibited under Michigan law).

Notably, this principle is so strong that it has commonly been applied by

domicile states to validate marriages even when couples purposely left the home

state to evade its marriage prohibition and marry in a more favorable jurisdiction.

These couples nevertheless returned home entitled to recognition of their

marriages. “Amid the confusion of state nuptial policies, the courts constructed a

series of rules that sanctioned the evasion of most statutory controls on

matrimony…. [J]udges gave their blessing to couples who shopped for a forum

that would accept their match.” Michael Grossberg, Governing the Hearth: Law

and the Family in Nineteenth-Century America 295-96 (1985). Such “evasive”

marriages have been recognized as valid in Ohio, as well as in every other state in

this Circuit, as a matter of routine. See, e.g., Peefer v. State, 182 N.E. 117, 121

(Ohio Ct. App. 1931); Stevenson, 56 Ky. at 214 (noting that marriage would be

upheld even if it was “celebrated in . . . evasion of our law”); Keith, 187 S.W.2d at

618; Miller’s Estate, 214 N.W. at 429 (holding that rule of recognition applies

“even if the parties are citizens and residents of this Commonwealth, and have

gone abroad for the purpose of evading our laws”).

To be sure, exceptions to the place-of-celebration rule have been allowed

where the out-of-state marriage would violate extremely strong public policy of the


22

domicile state. This exception has been described to exist for “marriages

repugnant to the moral sense of Christendom, of which the only recognized

examples are polygamous and incestuous marriages.” Joseph R. Long, Law of

Domestic Relations 87 (1905); see also, e.g., Miller’s Estate, 214 N.W. at 429

(noting exception to Michigan’s place-of-celebration rule for “[m]arriages which

are deemed contrary to the law of nature as generally recognized in Christian

countries,” which “includes only those void for polygamy or for incest” (internal

quotations omitted)). Public policy may also be embodied in a statutory

prohibition precluding recognition of the marriage, as with anti-miscegenation

statutes like those at issue in Loving. See also Pennegar v. State, 10 S.W. 305, 306

(Tenn. 1888) (noting that states may, by statute, determine that “decided policy of

the State concerning the morals and good order of society to that degree which will

render it proper to disregard the jus gentium of ‘valid where solemnized valid

everywhere’”).

Yet in practice, the public policy exception has been infrequently invoked to

invalidate a marriage valid where entered. “Instead, courts repeatedly indicate that

they have the discretion to use such a public policy exception but then validate the

out-of-state marriage following the general rule in favor of recognition.” Barbara

J. Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-Law:

Does It Really Exist?, 16 Quinnipiac L. Rev. 61, 66 (1996). Although cases


23

invalidating out-of-state marriages exist, by widespread practice in this country,

“[courts] have been quite reluctant to use the exception and quite liberal in

recognizing marriages celebrated in other states.” Id. at 68.9 Indeed, invalidation

has generally been reserved for marriages that violate such strong principles of

state public policy that the parties to the marriage are subject to criminal

prosecution. See, e.g., Rhodes v. McAfee, 457 S.W.2d 522, 523-24 (Tenn. 1970)

(out-of-state marriage between ex-stepfather and stepdaughter was void where

such marriage could be prosecuted as felony in Tennessee); State v. Bell, 66 Tenn.

9 (1872) (refusing to recognize out-of-state interracial marriage, then criminalized

in Tennessee, as defense to violation of Tennessee fornication law).

9 The three cases (none from states in this Circuit) cited by Defendant to

illustrate the public policy exception are not only inapposite, but help

demonstrate the courts’ reluctance actually to apply it. (Defendant-Appellant’s

Br. at 29-30.) Cook v. Cook, emphasizing “significant constitutional concern”

with disregarding the “vested right” to recognition of a marriage, construed an

Arizona statute voiding out-of-state first cousin marriages so as not to apply to

cousins who had married and moved to Arizona prior to the statute’s

enactment. 104 P.3d 857, 866-67 (Ariz. Ct. App. 2005). Laikola v.

Engineered Concrete, 277 N.W.2d 653 (Minn. 1979), and Hesington v. Estate

of Hesington, 640 S.W.2d 824 (Mo. Ct. App. 1982), declined to find that

couples had established common law marriages, subject to recognition in the

forum domicile states, based on brief temporary sojourns in jurisdictions where

elements of a common law marriage include cohabitation and holding out

publicly as spouses. In neither case did the court conclude that the parties had

satisfied the requirements for a common law marriage in the non-domicile

state. In contrast, there is no question in this case that Plaintiffs entered into

valid marriages that are legally recognized not only by the states where they

married, but also by the federal government and many other U.S. jurisdictions.


24

The bans at issue in this case are analogous to the ignoble state bans on

recognition of interracial marriages, struck down in 1967 in Loving. State anti-

miscegenation laws were the other historically noteworthy national departure from

the prevailing place-of-celebration standard and the constitutional due process

principles it advances. “Only in those states with anti-miscegenation statutes can

one find consistent and repeated use of public policy exceptions to refuse to

recognize otherwise valid out-of-state marriages. Once the Supreme Court

outlawed such refusals as unconstitutional, the public policy exception fell into

disuse.”10

Cox, 16 Quinnipiac L. Rev. at 67 (footnotes omitted). Indeed, until

marriage for same-sex couples entered the national stage, the “public policy”

exception had grown nearly “obsolete.” Singer, 1 Stan. J. C.R. & C.L. at 40; see

also Andrew Koppelman, Symposium, Interstate Recognition of Same-Sex

Marriages and Civil Unions: A Handbook for Judges, 153 U. Pa. L. Rev. 2143,

2148 (2005) (public policy exception had become “archaic”).

Thus in historical and contemporary times, our nation has followed a

universal standard of honoring marriages wherever entered, even when the

marriage was contrary to the domicile state’s public policy and express law. This

legal tradition has nurtured and protected validly-entered marriages, consistent

10

Notwithstanding bans on recognition of interracial marriages, the force of the

principle of universal recognition led some state courts nonetheless to accord

recognition to such marriages entered out of state. See, e.g., Miller v. Lucks, 36

So. 2d 140 (Miss. 1948).


25

with the constitutional protections due to the “enduring” and “intimate” status of

marriage. Ohio’s marriage recognition bans, categorically withholding recognition

to one class of marriages, dramatically break from this tradition, with only our

nation’s unconstitutional legacy of interracial marriage bans for precedent. They

represent “[d]iscriminations of an unusual character,” departing from Ohio’s – and

the nation’s – “history and tradition” of affording legal respect to marriages validly

entered in other jurisdictions. Windsor, 133 S. Ct. at 2692 (citation omitted); see

also Lawrence, 539 U.S. at 568-73 (relying on historical lack of enforcement of

sodomy bans and absence of laws singling out same-sex couples for punishment,

as well as growing obsolescence of bans on sexual intimacy, as guideposts in

finding state sodomy prohibitions unconstitutional).

Ohio’s otherwise unbroken tradition to accord comity to marriages, even of

Ohio residents who went elsewhere to obtain marriages that would have been

prohibited in the State, worked to protect spouses’ due process rights to a “status of

immense import.” Windsor, 133 S. Ct. at 2681. Just as Virginia’s ban on

recognition of marriages of interracial couples violated the due process guarantee,

so too does Ohio’s ban on recognition of marriages of same-sex couples.11

11

Ohio’s marriage recognition bans also infringe on other related fundamental

liberty interests in autonomy over “personal decisions relating to . . . family

relationships,” Lawrence, 539 U.S. at 573; see also Santosky v. Kramer, 455

U.S. 745, 753 (1982), as well as parenting rights, by precluding same-sex

married couples with children from securing legal recognition of their parent-


26

III. Neither The Full Faith And Credit Clause Nor Section 2 Of DOMA

Excuses Ohio’s Violation Of Plaintiffs’ Due Process Rights.

Contrary to Defendant’s contentions, neither the Full Faith and Credit

Clause nor Section 2 of DOMA, promulgated under that Clause, is a defense to

Ohio’s denial of recognition to married same-sex couples. See Defendant-

Appellant’s Br. 31-33.

The Full Faith and Credit Clause does not authorize Congress to enact

discriminatory provisions violating independent constitutional rights. “The power

the Constitution grants it also restrains. And though Congress has great authority

to design laws to fit its own conception of sound national policy, it cannot deny the

liberty protected by the Due Process Clause of the Fifth Amendment.” Windsor,

133 S. Ct. at 2695. The Supreme Court has long maintained that “[i]f there be any

conflict between” constitutional provisions, “the one[s] found in the amendments

must control, under the well-understood rule that the last expression of the will of

the lawmaker prevails over an earlier one.” Schick v. United States, 195 U.S. 65,

68-69 (1904).

Congress thus could no more have used its powers under the Full Faith and

Credit Clause to insulate the marriage recognition ban in Loving from due process

and equal protection requirements than it can insulate Ohio’s marriage recognition

child relationships through established legal mechanisms available to married

parents, see Henry, 2014 U.S. Dist. LEXIS 51211, at *30-31.


27

bans through Section 2 of DOMA. “Congress has no affirmative power to

authorize the States to violate the Fourteenth Amendment and is implicitly

prohibited from passing legislation that purports to validate any such violation.”

Saenz v. Roe, 526 U.S. 489, 508 (1999); see also Graham v. Richardson, 403 U.S.

365, 382 (1971) (“Congress does not have the power to authorize the individual

States to violate the Equal Protection Clause.”); De Leon, 2014 U.S. Dist. LEXIS

26236, at *64-65 (rejecting claim that Section 2 of DOMA permits Texas to refuse

to recognize out-of-state marriages between persons of the same sex).

For these reasons, as well as those asserted in Plaintiffs’ brief (at 47), neither

the Full Faith and Credit Clause nor Section 2 of DOMA justifies Ohio’s denial of

married same-sex spouses’ fundamental right to recognition of their marriages.

IV. Ohio’s Marriage Recognition Bans Are Subject To Strict Scrutiny.

Because the marriage recognition bans infringe upon protected fundamental

marriage rights, they are subject to strict scrutiny and therefore constitutionally

permissible only when “necessary to promote a compelling state interest.”

Reno v. Flores, 507 U.S. 292, 302 (1993) (law restricting fundamental rights must

be “narrowly tailored to serve a compelling state interest”); see also Montgomery,

101 F.3d at 1124 (“direct and substantial” burden on fundamental marriage rights

triggers strict scrutiny). As found by the district court, the marriage recognition


28

bans cannot survive any level of scrutiny and so violate the guarantee of due

process. Obergfell, 962 F. Supp. 2d at 993-95.

CONCLUSION

The decision below should be affirmed and Ohio’s marriage recognition

bans should be permanently enjoined as unconstitutional as applied to death

certificates.

Dated: May 1, 2014

Respectfully submitted,

/s/ Susan L. Sommer

Susan L. Sommer, Esq.

LAMBDA LEGAL DEFENSE & EDUCATION

FUND, INC.


New York, NY 10005

Tel: (212) 809-8585

[email protected]

Gregory R. Nevins, Esq.


FUND, INC.

730 Peachtree Street, NE

Suite 1070

Atlanta, GA 30308

Tel: (404) 897-1880

[email protected]


29

Camilla B. Taylor, Esq.


FUND, INC.

105 W. Adams

26th Floor

Chicago, IL 60603

Tel: (312) 663-4413

[email protected]

Attorneys for Amicus


CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. In compliance with the type-volume limitations of Fed. R. App. P.

29(d) and 32(a)(7)(B), the above brief contains 6,913 words, excluding the parts of

the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. In compliance with the type style and typeface requirements of Fed.

R. App. P. 32(a)(5)-(6), the brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2007 in Times New Roman 14-point font.

Dated: May 1, 2014 Respectfully submitted,

/s/ Susan L. Sommer


LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC.


New York, NY 10005-3919

Tel: (212) 809-8585

[email protected]

Attorney for Amicus Lambda Legal

Defense and Education Fund, Inc.



I certify that a copy of this brief has been served through the Court’s

electronic filing system on this 1st day of May, 2014. Electronic service was

therefore made upon all counsel of record on the same day.

Dated: May 1, 2014 Respectfully submitted,

/s/ Susan L. Sommer



FUND, INC.


New York, NY 10005

Tel: (212) 809-8585

[email protected]

Attorney for Amicus Lambda Legal Defense

and Education Fund, Inc.


Documents

Lambda Legal Amicus Brief