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 AMI CUS CURI AE 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
gnevins@lambdalegal.org
SUSAN L. SOMMER
Fund, Inc.
120 Wall Street, 19th Floor
New York, NY 10005
212-809-8585
ssommer@lambdalegal.org

CAMILLA B. TAYLOR
Fund, Inc.
105 W. Adams, 26th Floor
Chicago, IL 60603
312-663-4413
ctaylor@lambdalegal.org
Case: 14-3057 Document: 65 Filed: 05/01/2014 Page: 1
6CA-1
8/08 Page 1 of 2
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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
Susan L. Sommer, Camilla B. Taylor, Gregory R. Nevins
Lambda Legal Defense & Education Fund, Inc.
No.
No.
May 1, 2014
Susan L. Sommer
New York, NY 10005-3919

i

TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL
INTEREST
TABLE OF AUTHORITIES .................................................................................... ii
AMICUSS 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. Ohios 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 Ohios Violation Of Plaintiffs Due
Process Rights. .................................................................................... 26
IV. Ohios 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 Millers 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 Assn 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


1

AMI CUSS IDENTITY, INTERESTS, AND AUTHORITY TO FILE
1

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 Iowas 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 partys counsel authored the brief in whole or in part; no party or partys
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).

2

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),
Ohios 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. Ohios 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, Ohios 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
couples 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 States 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 persons 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
persons 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 Virginias 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 persons 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 nations 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 Ohios
marriage recognition bans from due process challenge. Ohios 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, Ohios
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 Constitutions 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 ones marriage partner, courts have
placed special emphasis on protecting ones 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 claimants 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 ones 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
nations 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

Ohios 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 Georgias sodomy statute, Bowers recast the right at stake, shared by all, to
consensual intimacy with the person of ones 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 parents unwillingness or inability to support children
from a prior relationship.

11

U.S. at 190). Significantly, Lawrence overruled Bowers, holding that Bowerss
constricted framing fail[ed] to appreciate the extent of the liberty at stake.
Lawrence, 539 U.S. at 567.
Defendants 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 Defendants
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 Assn v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting
plaintiffs assertion that the Affordable Care Acts 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. Ohios 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. Ohios 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 ones 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 husbands 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 Ohios 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 Nations 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 Windsors 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 nations 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 childs 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 Virginias 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 states law in order to enter into a marriage
expressly prohibited and denied recognition there. Significantly, the Court held
that Virginias 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 ones marriage, once entered, will be respected
throughout the land is indisputably deeply rooted in [o]ur Nations 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 familys 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 states 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).
Ohios 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 Ohios
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 Tennessees 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 Millers 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; Millers 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., Millers Estate, 214 N.W. at 429
(noting exception to Michigans 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-Appellants
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 statutes
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 states 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. Ohios marriage recognition bans, categorically withholding recognition
to one class of marriages, dramatically break from this tradition, with only our
nations unconstitutional legacy of interracial marriage bans for precedent. They
represent [d]iscriminations of an unusual character, departing from Ohios and
the nations 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).
Ohios 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 Virginias ban on
recognition of marriages of interracial couples violated the due process guarantee,
so too does Ohios ban on recognition of marriages of same-sex couples.
11

11
Ohios 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 Ohios Violation Of Plaintiffs Due Process Rights.

Contrary to Defendants contentions, neither the Full Faith and Credit
Clause nor Section 2 of DOMA, promulgated under that Clause, is a defense to
Ohios denial of recognition to married same-sex couples. See Defendant-
Appellants 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 Ohios 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 Ohios denial of
married same-sex spouses fundamental right to recognition of their marriages.
IV. Ohios 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 Ohios 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

Gregory R. Nevins, Esq.
FUND, INC.
730 Peachtree Street, NE
Suite 1070
Atlanta, GA 30308
Tel: (404) 897-1880
gnevins@lambdalegal.org


29

Camilla B. Taylor, Esq.
FUND, INC.
105 W. Adams
26th Floor
Chicago, IL 60603
Tel: (312) 663-4413
ctaylor@lambdalegal.org

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

Attorney for Amicus Lambda Legal
Defense and Education Fund, Inc.


I certify that a copy of this brief has been served through the Courts
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

Attorney for Amicus Lambda Legal Defense
and Education Fund, Inc.


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