Equality Ohio Et Al Amicus Brief

*Submitted with Consent of the Parties
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
rkaplan@paulweiss.com abmorrison@law.gwu.edu

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

v.

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

Defendant Appellant.
Case: 14-3057 Document: 74 Filed: 05/01/2014 Page: 1
6CA-1
8/08 Page 1 of 2
UNITED STATES COURT OF APPEALS
Disclosure of Corporate Affiliations
and Financial Interest
Sixth Circuit
Case 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 the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
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:
CERTIFICATE OF SERVICE
I certify that on _____________________________________ 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/
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.
14-3057 Obergefell v. Himes
Roberta Kaplan
Equality Ohio
No.
No.
May 1, 2014
Roberta Kaplan
6CA-1
8/08 Page 1 of 2
UNITED STATES COURT OF APPEALS
Disclosure of Corporate Affiliations
and Financial Interest
Sixth Circuit
Case 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 the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
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:
I certify that on _____________________________________ 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/
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.
14-3057 Obergefell v. Himes
Roberta Kaplan
Equality Ohio Education Fund
No.
No.
May 1, 2014
Roberta Kaplan

i
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 Ohios 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 Couples Marriage on a Death Certificate ...... 28
CONCLUSION ............................................................................................. 31


ii
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 OConnor, 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

iii
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

iv
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

v
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. 4123.59(D)(1) .........................................................18
Ohio Rev. Code Ann. 5747.08(E) ..........................................................2, 14
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 Dept 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, Members Guide to Health
Care Coverage for 2014 ........................................................................2, 16

vi
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


1
INTEREST OF AMICI CURIAE
1

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 Ohios 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.

2
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,
Members 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

3
occasions, however, hospitals have refused to speak to Richard about
Timothys 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 Ohios 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

4
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.


5
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 marryboth clearly unconstitutionalthey 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 protectionsregardless of the subject matterto 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).

6
Plaintiffs in this case have suffered an unquestionable harm
from the States 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 Courts 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

7
marriages . . . was more than an incidental effect of the federal statute.
(emphasis added)); id. at 2692 (The States 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 Ohios 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 ones 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, 87374 (6th Cir. 1997)).
As the court below correctly concluded, Ohios law prohibiting
the recognition of Plaintiffs out-of-state marriages on death certificates

8
violates the United States Constitutions 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 97374. 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 98182 (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.

9
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

10
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 OConnor, 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).

11
II. The Relevant Provisions of Ohios 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 Ohios 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 ones 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

12
sections. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 13233 (2000). Thus, while this Court must give careful
attention to Ohios 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 Ohios prohibition of gay people from ever
obtaining any rights as committed couplesat any time and under any
circumstancespasses 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 269495. See also Transcript of Oral Argument at 71, United
States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (Justice Ginsburg:
[I]tsas 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

13
government healthcare benefits; deprive[d] gay couples of the
Bankruptcy Codes 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 269495.
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

14
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 Dept 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 1526, Obergefell v. Himes, No. 14-3057 (6th Cir.
Apr. 17, 2014) (arguing that Ohios gay marriage ban is rationally related to
promoting child-rearing by two parents, one of each gender).

15
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 employees spouse can join the plan for a

16
nominal fee, but gay and lesbian partners, including Sarahs 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, Members 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 Dept 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 childs 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 RelationsChildren); Ohio Rev. Code Ann. Title 33

17
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 patients 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
decedents estate, which is property that can be used to support the surviving
spouse even when the decedents 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
spouses entire interest in the couples home. See Ohio Rev. Code Ann.
2106.10.

18
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 deaththe 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 spousebut
again, not a gay or lesbian partneris authorized to collect workers
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 Ohios 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.

19
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 persons 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 havesolely 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

20
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 Amendments 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).

21
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 Constitutions
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 Ohios 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 wont have a future unless
[heterosexual] moms and dads have children. Wymyslo, 962 F. Supp. 2d at

22
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 Amendments 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 thats 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

23
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

24
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 ones
own family. For example, Senator Rob Portman of Ohio, who voted in
favor of DOMA, revealed recently that his position on gay marriageonce
rooted in [his] faith tradition that marriage is a sacred bond between a man
and a womanchanged 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.

25
constitutionally impermissible motivei.e., moral disapproval of gay
peoplewas 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 laws 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) (OConnor, 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 2426,
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 2425, 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).

26
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))).

27
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 thats 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

28
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
principlethe 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 Couples Marriage on a Death Certificate
Finally, this case has been litigated as if it were necessary to
conclude that Ohios ban on performing gay marriages, and its refusal to

29
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
remotei.e., rationalconnection 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 4652, Obergefell v.
Himes, No. 14-3057 (6th Cir. Apr. 10, 2014); Amicus Curiae Brief of

30
Citizens for Community Values in Support of Defendants-Appellants and
Reversal at 1525, Obergefell v. Himes, No. 14-3057 (6th Cir. Apr. 18,
2014).
Actions, however, speak louder than words. Ohios 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. Ohios
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.

31
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
rkaplan@paulweiss.com

BAKER & HOSTETLER LLP

Thomas D. Warren, Esq.
PNC Center
1900 East 9
th
Street, Suite 3200
Cleveland, OH 44114-3482
(216) 621-0200
twarren@bakerlaw.com

Alan B. Morrison, Esq.
George Washington University Law School
2000 H Street, N.W.
Washington, D.C. 20052
(202) 994-7120
abmorrison@law.gwu.edu

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



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 Courts ECF system:



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