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No. 14-3464
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRITTANI HENRY, et al.,
Plaintiffs-Appellees,
v.
LANCE D. HIMES,
Defendant-Appellant.
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On Appeal from the United StatesDistrict Court for the Southern District
of Ohio, Western Division
District Court Case No. 14-cv-0129
REPLY BRIEF OF APPELLANT LANCE D. HIMES, INTERIM
DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH
MICHAEL DEWINE (0009181)
Attorney General of Ohio
ERIC E. MURPHY* (0083284)State Solicitor
*Counsel of RecordBRIDGET E. COONTZ (0072919)
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980; 614-466-5087 fax
Counsel for Defendant-Appellant,
Lance D. Himes, Interim Director of
the Ohio Department of Health
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................ iTABLE OF AUTHORITIES ................................................................................... iiiINTRODUCTION ..................................................................................................... 1ARGUMENT ............................................................................................................. 4I. THIS COURT SHOULD REJECT THE VIEW OF PLAINTIFFS (AND
NOW OF THE KITCHEN MAJORITY) THAT THE LOWER
COURTS MAY FREELY DISREGARDBAKER......................................... 4II. PLAINTIFFS AND THE KITCHEN MAJORITY BOTH OFFER
MISTAKEN RATIONALES FOR HEIGHTENED SCRUTINY .................. 7A. Plaintiffs and the Kitchen majority must depart from traditional
rules to find a fundamental right to same-sex marriage ........................ 8B. Plaintiffs cherry-pick the relevant history when arguing for a
fundamental right to same-sex-marriage recognition ......................... 12C. Plaintiffs make conclusory arguments in support of a variety of
different alleged liberty interests ..................................................... 15D. Plaintiffs equal-protection rationales for heightened scrutiny fare
no better than their fundamental-rights approaches ............................ 16III. PLAINTIFFS ARGUE FOR HEIGHTENED SCRUTINY BECAUSE
OHIO LAW SATISFIES RATIONAL-BASIS REVIEW ............................ 18IV. PLAINTIFFS WOULD TURN FACIAL CHALLENGES INTO THE
RULE RATHER THAN THE EXCEPTION................................................ 21V. THE NEW YORK PLAINTIFFS MISINTERPRET THE SCOPE OF
THE FULL FAITH AND CREDIT CLAUSE .............................................. 24A. Procedurally, Plaintiffs have not shown that 1983 provides a
vehicle to enforce the Full Faith and Credit Clause ............................ 24
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B. Substantively, Ohios decision not to put both of the New YorkPlaintiffs names on an amended birth certificate did not violate
the Full Faith and Credit Clause .......................................................... 27CONCLUSION ........................................................................................................ 30CERTIFICATE OF COMPLIANCECERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases Page(s)
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) (en banc) .......................................................passim
Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685 (6th Cir. 2011) .............................................................................. 20
Arapahoe Cnty. Pub. Airport Auth. v. FAA,
242 F.3d 1213 (10th Cir. 2001) .......................................................................... 28
Armour v. City of Indianapolis,
132 S. Ct. 2073 (2012) ........................................................................................ 19
Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) ............................................................................................ 28
Baker v. Nelson,
409 U.S. 810 (1972) .....................................................................................passim
Bowers v. Hardwick,
478 U.S. 186 (1986) ...................................................................................... 11, 16
Brandenburg v. Hous. Auth.,
253 F.3d 891 (6th Cir. 2001) .............................................................................. 13
Bruni v. Cnty. of Otsego,
192 A.D.2d 939 (N.Y. App. Div. 1993) ............................................................. 27
Conn v. Gabbert,
526 U.S. 286 (1999) ............................................................................................ 13
Davis v. Prison Health Servs.,
679 F.3d 433 (6th Cir. 2012) ........................................................................ 16, 17
Dennis v. Higgins,
498 U.S. 439 (1991) ............................................................................................ 25
Dir., Office of Workers Comp. Programs v. Newport News
Shipbuilding & Dry Dock Co.,
514 U.S. 122 (1995) ............................................................................................ 24
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Durfee v. Duke,
375 U.S. 106 (1963) ............................................................................................ 27
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) .................................................................. 16, 17, 20
Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007) .................................................................... 26, 27
Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103 (1989) ...................................................................................... 24, 25
Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) ............................................................................................ 26
Goodson v. McDonough Power Equip., Inc.,443 N.E.2d 978 (Ohio 1983) .............................................................................. 23
Graham v. Connor,
490 U.S. 386 (1989) ............................................................................................ 13
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................................................................ 11
Hardin v. Davis,
16 Ohio Supp. 19, 1945 WL 5519 (Ohio Ct. Com. Pl. 1945) ............................ 14
Hicks v. Miranda,
422 U.S. 332 (1975) .............................................................................................. 4
Howlett v. Rose,
496 U.S. 356 (1990) ............................................................................................ 25
In re Bonfield,
780 N.E.2d 241 (Ohio 2002) .............................................................................. 15
In re Bosworth,No. 86AP-903, 1987 WL 14234 (Ohio Ct. App. July 16, 1987)........................ 28
Kitchen v. Herbert,
No. 13-4178, __ F.3d __, 2014 WL 2868044 (10th Cir.
June 25, 2014) ..............................................................................................passim
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Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................. 4, 6, 11, 16
Lofton v. Secy of Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ............................................................................ 15
Loving v. Virginia,
388 U.S. 1 (1967) ................................................................................................ 10
Lyng v. Castillo,
477 U.S. 635 (1986) ............................................................................................ 15
Matthews v. Lucas,
427 U.S. 495 (1976) ............................................................................................ 18
Mazzolini v. Mazzolini,155 N.E.2d 206 (Ohio 1958) ........................................................................ 13, 14
Minnesota v. N. Secs. Co.,
194 U.S. 48 (1904) ........................................................................................ 25, 26
Mullins v. Oregon,
57 F.3d 789 (9th Cir. 1995) ................................................................................ 15
Obergefell v. Himes,
No. 14-3057 .......................................................................................... 1, 7, 16, 17
Peefer v. State,
182 N.E. 117 (Ohio Ct. App. 1931) .................................................................... 14
Pickett v. Brown,
462 U.S. 1 (1983) ................................................................................................ 18
Pink v. A.A.A. Highway Express, Inc.,
314 U.S. 201 (1941) ............................................................................................ 25
Plyler v. Doe,457 U.S. 202 (1982) ............................................................................................ 18
Reno v. Flores,
507 U.S. 292 (1993) .......................................................................................... 8, 9
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Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) .............................................................................................. 5
Romer v. Evans,
517 U.S. 620 (1996) .............................................................................. 4, 6, 17, 19
Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250 (6th Cir. 2006) ........................................................................ 16, 17
Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014) .................................................................................... 3, 21
Smith v. Smith,
50 N.E.2d 889 (Ohio Ct. App. 1943) .................................................................. 14
Song v. City of Elyria,985 F.2d 840 (6th Cir. 1993) ........................................................................ 1, 4, 5
State ex rel. Hofstetter v. Kronk,
254 N.E.2d 15 (Ohio 1969) ................................................................................ 23
State ex rel. Wilson v. Preston,
181 N.E.2d 31 (Ohio 1962) ................................................................................ 23
Stewart v. Lastaiti,
409 F. Appx 235 (11th Cir. 2010) ..................................................................... 26
Sun Oil Co. v. Wortman,
486 U.S. 717 (1988) ............................................................................................ 13
Thomas More Law Ctr. v. Obama,
651 F.3d 529 (6th Cir. 2012) (Sutton, J., concurring in part) ......................... 7, 25
Thomas v. Wash. Gas Light Co.,
448 U.S. 261 (1980) ............................................................................................ 25
Thompson v. Thompson,484 U.S. 174 (1988) ................................................................................ 25, 26, 27
Tully v. Griffin,
429 U.S. 68 (1976) ................................................................................................ 5
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Turner v. Safley,
482 U.S. 78 (1987) ........................................................................................ 10, 11
United States Citizens Association v. Sebelius,
705 F.3d 588 (6th Cir. 2013) .......................................................................... 9, 10
United States v. Dominguez,
359 F.3d 839 (6th Cir. 2004) .............................................................................. 28
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................passim
Walton v. Hammons,
192 F.3d 590 (6th Cir. 1999) .............................................................................. 18
Warshak v. United States,532 F.3d 521 (6th Cir. 2008) ........................................................................ 22, 23
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) ............................................................................................ 22
Washington v. Confederated Bands & Tribes of Yakima Indian
Nation,
439 U.S. 463 (1979) .............................................................................................. 5
Washington v. Glucksberg,
521 U.S. 702 (1997) .....................................................................................passim
Windsor v. United States,
833 F. Supp. 2d 394 (S.D.N.Y. 2012) ................................................................ 23
Zablocki v. Redhail,
434 U.S. 374 (1978) ...................................................................................... 10, 11
Statutes, Rules, and Constitutional Provisions
22 C.F.R. 51.42(a) ................................................................................................. 16
28 U.S.C. 1331 ................................................................................................ 26, 27
28 U.S.C. 1738C ............................................................................................passim
42 U.S.C. 1983 ...............................................................................................passim
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Other Authorities
Frank H. Easterbrook,Levels of Generality in Constitutional
Interpretation: Abstraction and Authority, 59 U. Chi. L. Rev.
(1992) .................................................................................................................... 8
Patrick J. Borchers, Baker v. General Motors: Implications for
Interjurisdictional Recognition of Non-Traditional Marriages,
32 Creighton L. Rev. (1998) ............................................................................... 13
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INTRODUCTION
After several rounds of briefing, here and in the companion case of
Obergefell v. Himes, No. 14-3057, a key point is undebatable: This case is as
much about the role of the courtsand the role of this intermediate Courtas it is
about same-sex marriage, fundamental rights, or anything else. Plaintiffs, the court
below, and the majority in the recent Tenth Circuit decision, Kitchen v. Herbert,
No. 13-4178, __ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014), share an
expansive view of the judiciarys role to reshape society, and an equally expansive
view of the lower courts prerogatives to do so in the face of contrary Supreme
Court precedent. Ohio and its citizens respectfully disagree, and urge this Court to
respect its limited role within our democracy and judicial hierarchy. It should
direct Plaintiffs to the proper road for the change they seekthe democratic road.
Plaintiffs response lacks merit. First, after Kitchen, Plaintiffs think they
can relegate Baker v. Nelson, 409 U.S. 810 (1972), to a footnote. But Kitchen
cannot control here. Its conclusion that the Supreme Courts summary dismissals
have lesser precedential value than its decisions conflicts with this Courts prior
conclusion that such dismissals have the same precedential value as other
holdings. Song v. City of Elyria, 985 F.2d 840, 843 (6th Cir. 1993). Moreover, as
the Kitchen dissent detailed, 2014 WL 2868044, *33-35 (Kelly, J., concurring in
part and dissenting in part), nothing in United States v. Windsor, 133 S. Ct. 2675
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(2013), undercutsBaker. It takes serious logical gymnastics to interpret Windsors
endorsement of the state control of marriage as eliminating the state control of
marriage.
Second, Plaintiffs offer a variety of rationales (at 17-36) for applying
heightened scrutiny here. Most notably, like the Kitchenmajority, they focus on a
claimed right to marry. This argument runs headlong into Washington v.
Glucksberg, 521 U.S. 702 (1997), which requires a careful description of the
asserted right rather than an articulation of that right at a high level of generality.
Id. at 721. If a specific right to assisted suicide cannot be engineered merely
through a request to participate in the general right to personal autonomy, see id.
at 724, Plaintiffs cannot create a specific right to same-sex marriage merely by
alleging that they seek to participate in the general right to marry.
Third, Plaintiffs argue (at 36-39) that Ohios marriage laws flunk rational-
basis review. Notably, however, the Kitchen majority struck down Utahs
marriage laws only by (wrongly) applying heightened scrutiny, conceding that its
opinion in no way impugn[ed] the integrity or the good-faith beliefs of those who
supported the Utah law. 2014 WL 2868044, at *32. And the Kitchen dissent
outlined many rational bases. For example, same-gender marriage is a new social
phenomenon with unknown outcomes and the State could choose to exercise
caution. 2014 WL 2868044, at *40 (Kelly, J., concurring in part and dissenting in
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part). Plaintiffs also cannot reconcile their views with Schuette v. Coalition to
Defend Affirmative Action, 134 S. Ct. 1623 (2014). Here, just as in Schuette,
courts should not presume that voters are not capable of deciding an issue of this
sensitivity on decent and rationalgrounds. See id.at 1637 (emphasis added).
Fourth, the Court should at least reverse the district courts facial remedy, as
Plaintiffs pleaded an as-applied case, and our system favors that limited approach.
Plaintiffs contrary view (at 40-44) unfairly seeks to use arguments tailored solely
to the birth-certificatecontext in support of a facial remedy for all contexts.
Fifth, the New York Plaintiffs mistakenly rely (at 44-58) on the Full Faith
and Credit Clause. They failed to show that the clause can be enforced under
1983, and, even if it could, the adoption decree does not violate it. Indeed,
Plaintiffs do not even cite federal DOMAs Section 2, which, left untouched by
Windsor, endorses each States right not to recognize same-sex marriage. All told,
Plaintiffs ask the Court not only to cast aside state law and Baker, but to throw out
a federal statute by ignoring it. That adds Congress, along with the Supreme Court
and the people of Ohio, to the actors that Plaintiffs would have the Court disregard
in their rush to make their views supreme.
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ARGUMENT
I. THIS COURT SHOULD REJECT THE VIEW OF PLAINTIFFS
(AND NOW OF THE KITCHEN MAJORITY) THAT THE LOWER
COURTS MAY FREELY DISREGARDBAKER
Ohios opening brief explained (at 24-27) both that Baker precludes
Plaintiffs claims and that the district court mistakenly relied on distinguishable
cases, including Windsor,Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v.
Evans, 517 U.S. 620 (1996). Even though the majority and dissent in the Tenth
Circuits decision spent pages debating Bakers domain, compare 2014 WL
2868044, at *7-10, withid.at *33-35 (Kelly, J., concurring in part and dissenting
in part), Plaintiffs now think it worthy of a mere footnote (at 39 n.7). Baker cannot
be dismissed in this way. Both precedent and logic point this Court to the Kitchen
dissent over the Kitchenmajority.
Start with this Courts precedent. According to the Kitchen majority, a
lower court must strictly follow a Supreme Court opinion even if recent cases have
all but overruled it, Kitchen, 2014 WL 2868044, at *8 & n.2, but may freely
disregard a summary dismissal if doctrinal developments have superseded it,
id. at *8 (quoting Hicks v. Miranda, 422 U.S. 332, 344 (1975)). Contrary to this
disparate approach to precedent, this Court has already concluded that summary
dispositions have the sameprecedential value as other holdings and are binding on
the lower courts until the Supreme Court decides otherwise. Song, 985 F.2d at
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843 (emphases added). Because Songinstructs this Court to follow the samerules
for all cases (even summary dismissals), Baker triggers the rule that if a Supreme
Court precedent has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to [the Supreme] Court the prerogative of
overruling its own decisions. Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989).
The Kitchenmajoritys view fares no better as a matter of Supreme Court
precedent. As the Kitchendissent recognized, 2014 WL 2868044, at *34 (Kelly,
J., concurring in part and dissenting in part), the Supreme Court has held that
summary dispositions are controlling precedent in lower courts unless and until
re-examined by [that] Court. Tully v. Griffin, 429 U.S. 68, 74 (1976). Any
relaxed precedential value of summary dismissals applies only in the Supreme
Courtnot in thisCourt. The Kitchen majoritys own citation to Washington v.
Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979),
proves that fact. Confederated Bandsheld that summary dismissals do not have
the same precedential value here, id.at 476 n.20 (emphasis added)meaning in
the Supreme Court. It says nothing about those dismissals having reduced
precedential value in the lower courts.
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Even assuming that the Supreme Court would authorize lower courts to
reject its rulings under a vague doctrinal developments test, nothing has
superseded Baker. As Ohios opening brief noted (at 27), Lawrence and Romer
involved different issues, and Lawrence disclaimed any intent to require public
recognition of gay and lesbian relationships, 539 U.S. at 578. The Kitchen
majority thus conceded that [s]everal courts held prior to Windsor that Baker
controlled the same-sex marriage question. 2014 WL 2868044, at *8.
The majoritys claim for trumping Baker thus boils down to Windsor. But
Windsors invalidation of Section 3 of DOMA rested on federalism groundsthat
the law was an unusual deviation from the [federal governments] usual tradition
of recognizing and accepting state definitions of marriage. 133 S. Ct. at 2693.
The Kitchenmajority conceded that Windsorcontains substantial federalism logic,
but suggested that Windsor did not adopt a federalism holding. See 2014 WL
2868044, at *9 (noting that the WindsorCourt concluded it was unnecessary to
decide whether DOMA is a violation of the Constitution because it disrupts the
federal balance (citation omitted)). But that provides no basis for disregarding
the federalism rationale. While Windsor rested on the Fifth Amendment rather
than the Constitutions underlying federalism structure, that underlying structure
still served to answer the Fifth Amendment questioni.e., it led the Court to find
that improper animus existed because of the federal governments unusual
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encroachment on the States. 133 S. Ct. at 2693. In this respect, the Kitchen dissent
rightly recognized the implausibility of the majoritys reading of Windsorwhich
treated its many pages on federalism as irrelevant musings. See 2014 WL
2868044, at *35, *38 (Kelly, J., concurring in part and dissenting in part).
In the end, what Ohio said in its ObergefellReply Brief (at 11-12) remains
true. The State gives full meaning to all of Windsor and reconciles that recent
decision withBaker, whereas Plaintiffs and the Kitchen majority readBaker out of
the U.S. Reports and ignore a substantial portion of Windsor. In this setting, where
the most natural reading of the relevant Supreme Court cases points in the States
direction, it is not the job of the lower courts to take the lead on the alternative
revolutionary path. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 553 (6th
Cir. 2012) (Sutton, J., concurring in part).
II. PLAINTIFFS AND THE KITCHEN MAJORITY BOTH OFFER
MISTAKEN RATIONALES FOR HEIGHTENED SCRUTINY
Ohios opening brief showed (at 27-42) that the district court erred by
applying heightened scrutiny to Ohios traditional definition of marriage.
Plaintiffs response both relies (at 17-21) on the Kitchen majoritys logic that
same-sex couples have a fundamental right to marry, and asserts (at 22-36) a
hodgepodge of alternative rationales for heightened scrutiny. None has merit.
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A. Plaintiffs and the Kitchenmajority must depart from traditionalrules to find a fundamental right to same-sex marriage
As Ohios opening brief illustrated (at 27-32), the traditional fundamental-
rights approach requires both that courts make a careful description of the
asserted right, Reno v. Flores, 507 U.S. 292, 302 (1993) (citation omitted), and
that the right be deeply rooted in this Nations history and tradition,
Glucksberg, 521 U.S. at 721 (citation omitted). Here, the carefully described
right asserted is one to same-sex marriage, which is not deeply rooted in our
Nations history.
Plaintiffs do not claim (at 17-21) that same-sex marriage is, in fact, deeply
rooted. Instead, they ratchet up the level of generality of the asserted right,
replacing the specific right to same-sex marriage with the more general right to
marry. But this analysis is irreconcilable with the Supreme Courts cases requiring
a careful description. Reno, 507 U.S. at 302. Indeed, Plaintiffs effort to change
the level of generality would lead to decisionmaking that is completely arbitrary
and impractical. Kitchen, 2014 WL 2868044, at *37 (Kelly, J., concurring in part
and dissenting in part). Under Plaintiffs approach, any group could argue for any
constitutional result simply by defining the alleged right at a level of generality that
makes it consistent with our traditions. See Frank H. Easterbrook, Levels of
Generality in Constitutional Interpretation: Abstraction and Authority, 59 U. Chi.
L. Rev. 349, 358 (1992) (Movements in the level of constitutional generality may
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be used to justify almost any outcome.). This risk of manipulation is precisely
why the Supreme Court has cautioned that [t]he doctrine of judicial self-restraint
requires [courts] to exercise the utmost care in the subjective fundamental-rights
area. Reno, 507 U.S. at 302 (citation omitted).
A few examples prove this risk. Take Glucksberg, which concerned whether
the plaintiff had a right to assisted suicide. See 521 U.S. at 705-06. The plaintiffs
there (like the Plaintiffs here) faced the same dilemmathe Nation had an almost
universal tradition that has long rejected the asserted right. Id.at 723. No matter.
The plaintiffs raised the level of generality, asserting that they did not seek to
create a new right to suicide and merely sought to participate in the general right
to the basic and intimate exercises of personal autonomy. Id.at 724 (citation
omitted). The Court handily rejected this claim, reasoning that simply because
many of the rights and liberties protected by the Due Process Clause sound in
personal autonomy does not warrant the sweeping conclusion that any and all
important, intimate, and personal decisions are so protected. Id.at 727.
Or take this Courts recent decision in United States Citizens Association v.
Sebelius, 705 F.3d 588 (6th Cir. 2013)which addressed whether the plaintiffs
had a right not to abide by the individual mandate in the Patient Protection and
Affordable Care Act. See id. at 601. Since [t]he Supreme Court long ago
abandoned the protection of economic rights through substantive due process, the
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plaintiffs attempted to reframe the right. Id. They did not seek a new right not
to pay taxes; they sought to participate in the fundamental right to refuse
unwanted medical care. See id. This Court disagreed, and, in the process,
recognized that the right at issue must be carefully described. Id.
The Kitchenmajority, by contrast, suggested that, [i]n numerous cases, the
[Supreme] Court has discussed the right to marry at a broader level of generality
than would be consistent with Ohios approach. Kitchen, 2014 WL 2868044, at
*12, *14 (citing Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434
U.S. 374 (1978);Loving v. Virginia, 388 U.S. 1 (1967)). But, as a general matter,
nothing suggests that the term marriage as used in those cases had any meaning
other than what was commonly understood for centuries. Kitchen, 2014 WL
2868044, at *36 (Kelly, J., concurring in part and dissenting in part). Adjectives
about inmate marriage (Turner), marriage by one owing child support (Zablocki)
or interracial marriage (Loving) were modifiers to the nounmarriage, which was
defined with the opposite-sex framework. SeeWindsor, 133 S. Ct. at 2689.
These cases are also distinguishable on more specific rationales. Loving, for
example, involved racial discriminations, 388 U.S. at 12, and triggered the
Fourteenth Amendments central purpose to eliminate all official state sources
of invidious racial discrimination, id. at 10. It was also decided years before
Baker. Whether or notBakerhas been superseded by later decisions,Bakercould
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not have been supersededby apreceding case. The other two cases are also fully
consistent with Ohios approach. Plaintiffs assert that Turnerdid not ask whether
there was any historical right to inmate marriage andZablockidid not ask whether
there was any historical right to marriage by those who owe child support. But this
has it backwards. The proper question is whether there was a historical limiton the
right to marry of prisoners or those who owed child support. The States in neither
case pointed to any such tradition. See Turner, 482 U.S. at 94-95;Zablocki, 434
U.S. at 384-86.
Plaintiffs lastly suggest (at 19-20) that Ohios approach conflicts with
Lawrence, which criticizedBowers v. Hardwick, 478 U.S. 186 (1986), as fail[ing]
to appreciate the extent of the liberty at stake. 539 U.S. at 567. But Lawrence
concerned the most private human conduct, sexual behavior, and in the most
private of places, the home, id. at 567, and fell within the right to privacy
recognized by Griswold v. Connecticut, 381 U.S. 479 (1965). Even at the highest
level of generality, Plaintiffs cannot plausibly assert that this right to privacy
includes a right topublicrecognition. Cf. Lawrence, 539 U.S. at 578.
One final point against Plaintiffs view. The traditional fundamental-rights
approach is the more adaptable; it leaves the greater flexibility for our society to
debate and evolve. Cf. Glucksberg, 521 U.S. at 735 (Throughout the Nation,
Americans are engaged in an earnest and profound debate about the morality,
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legality, and practicality of physician-assisted suicide. Our holding permits this
debate to continue, as it should in a democratic society.). Plaintiffs approach, by
contrast, is wooden. It has the potential to cement every question into a
constitutional one, making it impossible for future generations to adopt new laws
in the face of a changing society. And it requires the courts to exercise what is
essentially legislative oversight outside their institutional expertise. See Kitchen,
2014 WL 2868044, at *37 (Kelly, J., concurring in part and dissenting in part)
([T]he State has a much better handle on what statutory and administrative
provisions are involved, and what is necessary to implement change, than we do.).
B. Plaintiffs cherry-pick the relevant history when arguing for afundamental right to same-sex-marriage recognition
As Ohios opening brief showed (at 32-34), Plaintiffs do not have a
fundamental right to force the State to recognize out-of-state, same-sex
marriages, because (1) such a right conflicts with our Nations history and (2) the
Full Faith and Credit Clause has long allowed States to refuse to recognize
marriages against their public policy. In response, Plaintiffs attempt (at 22-28) to
satisfy the Glucksberg standard, pointing to an alleged tradition of States
recognizing out-of-state marriages valid in the State of celebration. This response
does not suffice.
To begin with, Plaintiffs ignore the States argument why this Court need
not even apply Glucksberg. Where a provision of the Constitution provides an
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explicit textual source of constitutional protection, a court must assess a plaintiffs
claims under that explicit provision and not the more generalized notion of
substantive due process. Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)); see Brandenburg v. Hous. Auth.,
253 F.3d 891, 900 (6th Cir. 2001). Here, the Full Faith and Credit Clause provides
the textual source for determining whether one State must recognize anothers
laws. And, notably, that clause does not require Ohio to recognize out-of-state,
same-sex marriages. Indeed, it gives Congress great latitude in determining the
effect of one States laws in another State, see Sun Oil Co. v. Wortman, 486 U.S.
717, 729 (1988), and Section 2 of DOMA allows Ohio to disregard out-of-state,
same-sex marriages, see 28 U.S.C. 1738C.
Regardless, Plaintiffs cannot satisfy Glucksberg. Their view would
constitutionalize the choice-of-law default rule on which they rely, while reading
out the equally established public-policy exception. See Mazzolini v. Mazzolini,
155 N.E.2d 206, 208 (Ohio 1958) (noting that Ohio would not recognize marriage
unalterably opposed to a well-defined public policy); see generally Patrick J.
Borchers, Baker v. General Motors: Implications for Interjurisdictional
Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 154-58
(1998) (discussing history and concluding that [w]hile the application of the
public policy exception has varied with courts and circumstances, state conflicts
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rules have always been open to refusing to recognize certain marriages and classes
thereof). Fundamental-rights analysis does not allow parties to invoke the
portions of history that they like and disregard the rest.
Plaintiffs respond (at 28-29) that this exception has been infrequently
invoked. But they fail to explain why a State must invoke an exception frequently
enough to preserve its use against a constitutionally imposed expiration date. And,
frankly, this issue simply has not arisen often either way. Plaintiffs have identified
three Ohio cases in which an out-of-state marriage that would have been unlawful
in the State was recognized. It cannot be the case that the Ohio legislature has
given up its public-policy exception because the Ohio courts once recognized a
marriage between first cousins, Mazzolini, 155 N.E.2d at 208-09, a marriage
involving a minor over the common law age, Peefer v. State, 182 N.E. 117, 120-
21 (Ohio Ct. App. 1931), or a proxy marriage between a woman and a man
serving during World War II,Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519,
at *5 (Ohio Ct. Com. Pl. 1945)); cf. Smith v. Smith, 50 N.E.2d 889, 894 (Ohio Ct.
App. 1943) (suggesting that [h]ad Connecticut recognized the marriage as valid, it
would be questionable whether the public policy of Ohio would approve). The
Court should resist the urge to create a super Full Faith and Credit Clause under
the guise of substantive due process.
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C. Plaintiffs make conclusory arguments in support of a variety ofdifferent alleged liberty interests
Plaintiffs supplement (at 30-32) their fundamental-rights claim with other
liberty interests allegedly at stake for birth certificates, ranging from parental
rights, to rights to intimate association, family integrity, and self-definition, to
the right to travel. They are wrong on all counts.
As an initial matter, Plaintiffs do not dispute that the only other circuit to
consider whether same-sex couples have a fundamental right to listing both
names on a birth certificate has rejected the claim. See Adar v. Smith, 639 F.3d
146, 162 (5th Cir. 2011) (en banc) (noting that since adoption is not a
fundamental right, the Louisiana law will be upheld if it is rationally related to a
legitimate state interest). And other circuits agree that individuals with no
biological connection to a child have no fundamental right to become that childs
parent. See, e.g., Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d
804, 811 (11th Cir. 2004);Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995).
In all events, Plaintiffs do not explain how the failure to list both names on a
birth certificate directly and substantially interfere[s] with any fundamental
right so as to trigger heightened scrutiny. Lyng v. Castillo, 477 U.S. 635, 638
(1986) (citation omitted). Plaintiffs own expert points to Ohio law allowing
couples to enter co-custody agreements giving a non-parent decisionmaking
rights. See Doc.17-3, Becker Decl., at Page ID #144; In re Bonfield, 780 N.E.2d
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241, 249 (Ohio 2002). And, as for any right to travel, Plaintiffs identify nothing in
federal law that prevents them from obtaining a passport for the child, whether or
not the passport lists both individuals. See 22 C.F.R. 51.42(a) (merely requiring
submission of birth certificate).
D. Plaintiffs equal-protection rationales for heightened scrutiny fareno better than their fundamental-rights approaches
With respect to equal protection, Ohios opening brief explained (at 37-42)
both that this Courts cases require rational-basis review and that, aside from
precedent, heightened scrutiny is inappropriate. See Davis v. Prison Health Servs.,
679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty. Bd. of Educ., 470
F.3d 250, 261 (6th Cir. 2006);Equality Found. of Greater Cincinnati, Inc. v. City
of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997). In response, Plaintiffs assert (at
33-36): (1) that sexual-orientation classifications are subject to heightened
scrutiny; (2) that traditional marriage discriminates based on gender; and (3) that
Ohios marriage laws discriminate against children. All three theories fail.
First, Plaintiffs rely entirely (at 33-34) on the ObergefellAppellees Brief
for their claim that it remains open in this Court whether sexual-orientation
classifications should be subject to heightened scrutiny. In doing so, they do not
even attempt to confront the reasons identified in the States ObergefellReply (at
16-20) why they are wrong. They continue to claim thatLawrences decision to
overrule Bowers also overruled Equality Foundationeven though, as the State
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has noted, Equality Foundation rested on Romer. 128 F.3d at 294. Their claim
thatDavissand Scarbroughs conclusions to the same effect qualify as mere dicta
ignores the States illustration that the standard-of-review framed how those cases
were resolved on appeal and how they would be resolved on remand. See, e.g.,
Davis, 679 F.3d at 438; Scarbrough, 470 F.3d at 261. Finally, Plaintiffs claim
that Windsor changes things ignores that it relied on rational-basis language and
cited rational-basis cases. See 133 S. Ct. at 2693, 2695-96.
The Kitchen decision cements this conclusion. The Kitchenmajority did not
rely on this ground as the basis for its conclusion that heightened scrutiny applied.
See 2014 WL 2868044, at *11-21. And the Kitchen dissent noted both that the
panel was bound by the Tenth Circuits prior cases reject[ing] heightened
scrutiny for sexual-orientation classifications and that the Windsor decision did
not undermine those decisions. Id. at *36 (Kelly, J., concurring in part and
dissenting in part). Identical analysis applies here.
Second, Plaintiffs gender-discrimination argument simply incorporates the
logic of the Obergefell Appellees Brief and fails for the reasons stated in the
Obergefell Reply (at 21-22). Apart from prior briefing, Kitchen is again notable.
The Kitchenmajority did not rest on any gender-discrimination theory, see 2014
WL 2868044, at *11-21, and the dissent rejected the theory because the plaintiffs
there could not show that either gender as a class is disadvantaged by the Utah
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provisions retaining the traditional definition of marriage, id. at *35 (Kelly, J.,
concurring in part and dissenting in part).
Third, Plaintiffs are wrong (at 35-36) to rely on heightened equal-protection
scrutiny based on alleged discrimination against children. Notably, the Fifth
Circuit rejected calls for heightened scrutiny in the most analogous case. See Adar,
639 F.3d at 162. And the only case cited by Plaintiffs that applied heightened
scrutiny did so based on the use of illegitimacy as a classification. See Pickett v.
Brown, 462 U.S. 1, 8 (1983). That case[] cannot support the conclusion that the
children at issue here belong[] to a suspect class protected by heightened
scrutiny because Ohio is not using any type of illegitimacy classification. Adar,
639 F.3d at 162. Plaintiffs other cases either applied rational-basis review, see
Plyler v. Doe, 457 U.S. 202, 223-24 (1982);Matthews v. Lucas, 427 U.S. 495, 505,
510 (1976); or considered a statutory, not an equal-protection, issue, see Walton v.
Hammons, 192 F.3d 590, 599 (6th Cir. 1999). In short, the relevant classification
here by the State is that unmarriedpartners are not listed on birth certificates, and
the underlying classification that Plaintiffs challenge is the treatment of them as
unmarried, which they must win or lose on its own merits.
III. PLAINTIFFS ARGUE FOR HEIGHTENED SCRUTINY BECAUSE
OHIO LAW SATISFIES RATIONAL-BASIS REVIEW
Ohios opening brief identified (at 42-50) several rational bases for its
marriage laws. Among other things, Ohio has a legitimate interest in wanting Ohio
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marriage law to be decided by Ohio, not by another State, and by the people, not
by judges. And it is rational to approach such far-reaching social change with care.
Plaintiffs responses (at 36-39) do not satisfy their high burden to negative every
conceivable basis which might support Ohio law. Armour v. City of
Indianapolis, 132 S. Ct. 2073, 2080-81 (2012) (citation omitted).
Plaintiffs initially assert (at 37) that rational-basis review prohibits a State
from adopting classifications intended merely to disadvantag[e] the group
burdened by the law. Romer, 517 U.S. at 633. But retaining the traditional
definition of marriage does not do so. Indeed, the Kitchen majoritywhile it
wrongly applied heightened scrutiny for the reasons discussedsupports Ohio on
this issue. It did not find, even as an alternate ground, that traditional marriage
flunks rational-basis review. See 2014 WL 2868044, at *21-32. And while the
majority never formally opined whether the law would survive rational-basis
review, it did suggest it would have rejected the claim that Utah acted with the bare
animus to disadvantage gays and lesbians. The majority noted that it in no way
endorse[s] such a view and in no way impugns the integrity or the good-faith
beliefs of those who supported the Utah law. Id. at *32. And it said that
reasonable judges could disagree on the merits of the same-sex marriage
question. Id. at *10.
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In addition, the Kitchen dissent outlined many bases that are in no way
related to animus. Id. at *38-42 (Kelly, J., concurring in part and dissenting in
part). Among other things, it noted that [o]ne only need consider the reams of
materials cited by the parties and the scores of amicus briefs on either side to
know that the States position is (at the very least) arguable. Id.at *41. And it
detailed the scope of rational-basis review. Id.at *39. That scope bears repeating.
Under that review, the electorates possible actual motivations are irrelevant, and
the court must consider all hypothetical justifications which potentially support
the enactment. Equality Found., 128 F.3d at 293 n.4; see Am. Express Travel
Related Servs. Co. v. Kentucky, 641 F.3d 685, 690 (6th Cir. 2011) (noting that laws
satisfy rational-basis review if they can be upheld even under justifications
hypothesized by the court).
Plaintiffs respond by briefly discussing two state interests. They ridicule (at
38) the States reliance on the unknowable effects of same-sex marriage, calling it
just the kind of wholly unsubstantiated justification[] that the Supreme Court
has repeatedly rejected. But [p]ast changes in the understanding of marriage
for example, the gradual ascendance of the idea that romantic love is a prerequisite
to marriagehave had far-reaching consequences that tend[ ] to occur over an
extended period of time. Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting). It is
rational to believe that redefining marriage to include same-sex couples could have
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some effect on the institution of marriage, and that evaluating the effects in other
States makes good sense. See id. at 2715-16 nn.5-6. As the Kitchen dissent
reiterated, [a]t the very least, same-gender marriage is a new social phenomenon
with unknown outcomes and the State could choose to exercise caution. 2014
WL 2868044, at *40 (Kelly, J., concurring in part and dissenting in part).
Plaintiffs also criticize (at 39) the States reliance on Schuette, arguing that it
does not insulate unconstitutional laws from judicial review. But that argument
assumes the conclusion to the question presentedwhether Ohios laws are
constitutional. And Schuette supports the State on that question because the
question requires Plaintiffs to establish that Ohios voters acted irrationally.
Schuette reminds the courts that even sensitive issues can be handled by the
electorate with care, and that [i]t is demeaning to the democratic process to
presume that the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds. 134 S. Ct. at 1637 (emphasis added). This
substantial skepticism toward the judiciarys finding that the electorate resolved a
sensitive social issue irrationallyis highly instructive for rational-basis review.
IV. PLAINTIFFS WOULD TURN FACIAL CHALLENGES INTO THE
RULE RATHER THAN THE EXCEPTION
Ohios opening brief explained (at 19-23) that Plaintiffs pleaded an as-
applied case in the birth-certificate context, and improperly turned it into a broad
facial attack on Ohios marriage laws in all contexts, contrary to the presumption
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for as-applied litigation. In response, Plaintiffs do not dispute that they brought an
as-applied claim, and fail to justify the district courts facial relief.
Plaintiffs start with the meritsarguing (at 40) that Ohios laws are facially
invalid because they severely disadvantage[] lesbian and gay couples. But the
procedural question here is whether the district court should have even reached
beyond the birth-certificate context. Further, as Plaintiffs brief shows, many of
their merits arguments concern only birth certificates. For example, Plaintiffs
(wrongly) claim (at 30-32) that the Ohio laws as applied to birth certificates burden
rights to parenting or travel. Those claims do not implicate Ohio laws having
nothing to do with children or plaintiffs without children. Plaintiffs, in other
words, raise arguments tied to birth certificates, but claim that those arguments
entitle them to facial relief. But facial challenges generally require the challenger
to establish that no set of circumstances exists under which [the relevant law]
would be valid. Warshak v. United States, 532 F.3d 521, 529 (6th Cir. 2008)
(citation omitted).
Plaintiffs next rely (at 40-41) on law-review articles for the claim that courts
mistakenly say facial challenges are disfavored. This Court is bound by precedent,
not commentary. And the precedent could not be clearer[f]acial challenges are
disfavored. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008). As for Plaintiffs claim (at 41-42) that Windsor facially invalidated
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Section 3 of DOMA, nothing in the opinion says as much. And the district court
merely held that the federal provision was unconstitutional as applied to
Plaintiff. Windsor v. United States, 833 F. Supp. 2d 394, 406 (S.D.N.Y. 2012).
Plaintiffs remaining arguments confirm that their facial challenge was
improper. They insist (at 43-44) that a judgment in their favor would have
preclusive effect on every state actor. SeeState ex rel. Hofstetter v. Kronk, 254
N.E.2d 15, 17 (Ohio 1969); State ex rel. Wilson v. Preston, 181 N.E.2d 31, 37-38
(Ohio 1962). But that is wrong. Ohio still requires mutuality to apply offensive
preclusion, so different plaintiffs could not rely on it. See Goodson v. McDonough
Power Equip., Inc., 443 N.E.2d 978, 987 (Ohio 1983). In both Wilson and
Hofstetter, by contrast, the non-state party was a party in the earlier proceeding.
Plaintiffs also argue (at 44) that the State is bound to follow precedent. That is
true, but Plaintiffs fail to explain why they could properly departfrom this normal
mode of case-by-case decisionmaking with their belated request for facial relief.
In short, even assuming (wrongly) that Plaintiffs prevail, the Court must at
least change the scope of the remedy to only Plaintiffsand onlybirth certificates.
Cf. Warshak, 532 F.3d at 531 (finding it inappropriate to grant a preliminary
injunction in favor of persons other than [the plaintiff]).
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V. THE NEW YORK PLAINTIFFS MISINTERPRET THE SCOPE OF
THE FULL FAITH AND CREDIT CLAUSE
The full-faith-and-credit claim raised by the New York Plaintiffswho wish
to have Ohio place both of their names on an amended birth certificate based on
their New York adoptionfails on procedural and substantive grounds.
A. Procedurally, Plaintiffs have not shown that 1983 provides avehicle to enforce the Full Faith and Credit Clause
As Ohio explained (at 50-55), the Fifth Circuit rightly concluded that full-
faith-and-credit claims are not enforceable via 1983. Adar, 639 F.3d at 152-57.
Plaintiffs efforts to create a circuit split fall flat. They lead (at 49) with what the
Supreme Court has elsewhere described as that last redoubt of losing causes
the canon that certain statutes should be liberally construed. See Dir., Office of
Workers Comp. Programs v. Newport News Shipbuilding & Dry Dock Co. , 514
U.S. 122, 135 (1995). This canon cannot create federal rights that do not exist; it
does not allow courts, for example, to use 1983 to enforce the Supremacy Clause.
See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989).
Analogizing to the dormant Commerce Clause, Plaintiffs next mistakenly
argue (at 49-50) that the Full Faith and Credit Clause satisfies the test for
determining whether federal provisions are actionable under 1983. But the Full
Faith and Credit Clause is more like the Supremacy Clause (which the Supreme
Court found not actionable under 1983 in Golden State) than the dormant
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Commerce Clause (which the Supreme Court found actionable under 1983 in
Dennis v. Higgins, 498 U.S. 439 (1991)). Both the Supremacy Clause and the Full
Faith and Credit Clause enact choice-of-law rules. The former enforces the rights
found in otherfederallaws over conflicting state laws. Golden State, 493 U.S. at
107. The latter enforce[s] the rights found in the judgment States preclusion
law over contrary laws. Howlett v. Rose, 496 U.S. 356, 381 (1990) (citation
omitted). In other words, that clause prescribes a rule by which courts, Federal
and state, are to be guided when a question arises . . . as to the faith and credit to be
given by the court to the public acts, records, and judicial proceedings of a State
other than that in which the court is sitting. Thompson v. Thompson, 484 U.S.
174, 182-83 (1988) (quotingMinnesota v. N. Secs. Co., 194 U.S. 48, 72 (1904)).
Indeed, Plaintiffs cases (at 50) support this reading and undercut their own.
See, e.g.,Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n.23 (1980); Pink v.
A.A.A. Highway Express, Inc., 314 U.S. 201, 210 (1941). While some of these
cases do loosely use the term federal rights under full faith and credit, none
involved a 1983 suit. And most confirm that the law of the judgment State
createsthe right, while the Full Faith and Credit Clause secure[s] it. Golden
State, 493 U.S. at 107 (citation omitted). Thomas, for example, says that the clause
preserve[s] rights acquired or confirmed under the . . . judicial proceedings of
one state. 448 U.S. at 278 n.23 (citation omitted; emphases added).
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Plaintiffs also wrongly argue (52-53) that the Fifth Circuit stands alone, and
that this Court should instead follow the Tenth Circuit. See Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007). But the Tenth Circuit did not even consider this
issue whether full-faith-and-credit claims are actionable under 1983. See id. at
1151-56. And Plaintiffs other cases (at 53 n.11) reject 1983 claims on other
grounds without considering it either. All told, only one other circuit has
addressed the issue, and it agrees with the Fifth Circuit. Stewart v. Lastaiti, 409
F. Appx 235, 235-36 (11th Cir. 2010).
Plaintiffs fare no better (at 55-56) in distinguishing Thompsonwhich held
that the Full Faith and Credit Clause does not create an implied right of action, 484
U.S. at 177-78on the ground that it involved a privatedefendant rather than a
state defendant suable under 1983. But [a] courts role in discerning whether
personal rights exist in the 1983 context should . . . not differ from its role in
discerning whether personal rights exist in the implied right of action context.
Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). Thompsons implied-right-of-
action holding is dispositive for 1983 as well.
Finally, Plaintiffs ignore Ohios point that the Full Faith and Credit
Clausealone among constitutional provisionsdoes not create federal-question
jurisdiction under 28 U.S.C. 1331. See N. Secs., 194 U.S. at 72. It is hard to see
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how the Full Faith and Credit Clause could create a federal righttriggering 1983
when it does not even create afederal questiontriggering 1331.
B. Substantively, Ohios decision not to put both of the New YorkPlaintiffs names on an amended birth certificate did not violate
the Full Faith and Credit Clause
Ohios decision not to list both of the New York Plaintiffs names on a birth
certificate does not violate the Full Faith and Credit Clause. First, as Ohio noted
(at 56-58), that Clause requires every State to give to a judgment at least the res
judicata effect which the judgment would be accorded in the State which rendered
it, Durfee v. Duke, 375 U.S. 106, 109 (1963), but Defendant Himes was not a
party to the New York judgment and cannot be bound by it under New York law,
seeBruni v. Cnty. of Otsego, 192 A.D.2d 939, 941 (N.Y. App. Div. 1993).
Plaintiffs call this argument absurd (at 57) because it would requir[e] each
state in the nation to be a party to the original action in a sister state in order for the
resulting judgment to be enforced across the country. Finstuen, 496 F.3d at 1154.
But this no-preclusion result only applies where, as here, a plaintiff seeks to
enforce the judgment against a state official based on a prior case to which the
official was not a party. The state courts, by contrast, do not have to be parties to
prior litigation to be bound by the constitutional full-faith-and-credit rule of
decision. Thompson, 484 U.S. at 182. Thus, Plaintiffs claims of chaos (at 58)
are overblown because out-of-state adoptions are enforceable in state courts
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whether or not any state official participated in the previous suitas Plaintiffs
own cases illustrate. See In re Bosworth, No. 86AP-903, 1987 WL 14234, at *2
(Ohio Ct. App. July 16, 1987).
If anything, it is Plaintiffs alternative view that would cause chaos because
it would mean that every state official in all fifty States would be bound by every
judgment in all of those States. Cf. Arapahoe Cnty. Pub. Airport Auth. v. FAA, 242
F.3d 1213, 1219 (10th Cir. 2001) (refusing to give preclusive effect to judgment
because FAA was not a party to prior proceeding); see also United States v.
Dominguez, 359 F.3d 839, 845-846 (6th Cir. 2004) (refusing to give preclusive
effect to state prosecution in federal prosecution, as federal government was not
party to state action). As Dominguez noted, applying preclusion against all
government officials who are absent from a prior case incentivizes all of those
officials to intervene in the prior case. Now that would be chaos.
Second, as the State noted (at 56-58), [e]nforcement measures do not travel
with the sister state judgment as preclusive effects do; such measures remain
subject to the evenhanded control of forum law. Baker v. Gen. Motors Corp., 522
U.S. 222, 235 (1998). Here, as inAdar, [o]btaining a birth certificate falls in the
heartland of enforcement, and therefore outside the full faith and credit obligation
of recognition. See Adar, 639 F.3d at 160. Plaintiffs suggest (at 46-47, 56-57)
that Ohio is not evenhandedly enforcing adoption decrees because it treats their
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New York adoption different from an Ohio adoption. They fail to explain why.
Ohio has not refused to recognize their New York adoption; it refuses to recognize
their New Yorkmarriage. SeeDoc.4-6, Letter, at Page ID #73-74. That creates an
evenhanded prohibition: Ohio law does not allow unmarried coupleswhether
adopting out-of-state or in-stateto obtain revised birth certificates with both
parents names on them. Adar, 639 F.3d at 161. In this case, for example, it is
telling that both in-state and out-of-state couples seek the same relief.
Third, as Ohio noted (at 58), the Full Faith and Credit Clause empowers
Congress to establish the effect of a judicial proceeding, and federal law says that
Ohio need not give effect to any . . . judicial proceeding . . . respecting a
relationship between persons of the same sex. 28 U.S.C. 1738C. Plaintiffs say
not a word regarding this controlling statute.
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CONCLUSION
The Court should reverse the district courts judgment, dissolve its
permanent injunction, and direct it to enter a judgment in favor of Defendant-
Appellant Lance D. Himes.
MICHAEL DEWINE (0009181)
Attorney General of Ohio
/s/Eric E. Murphy
ERIC E. MURPHY* (0083284)
State Solicitor*Counsel of Record
BRIDGET E. COONTZ (0072919)
Assistant Attorney General
Constitutional Offices Section
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980; 614-466-5087 fax
Counsel for Defendant-Appellant
Lance D. Himes, Interim Director of the Ohio
Department of Health
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that this brief complies
with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B):
1. Exclusive of the portions of the brief exempted by 6th Cir. R. 32(b)(1), the brief contains approximately 6,972 words.
2. The brief has been prepared in Times New Roman, 14 point font.
/s/Eric E. Murphy
Eric E. Murphy
State Solicitor30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980; 614-466-5087 fax
Counsel for Lance D. Himes,
Interim Director of the Ohio
Department of Health
Case: 14-3464 Document: 89 Filed: 07/15/2014 Page: 40
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8/12/2019 14-3464 #89
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CERTIFICATE OF SERVICE
I certify that a copy of this brief has been served through the courts
electronic filing system on this 15th day of July, 2014. Electronic service was
therefore made upon all counsel of record on the same day.
/s/Eric E. Murphy
Eric E. Murphy
State Solicitor
30 East Broad Street, 17th FloorColumbus, Ohio 43215
614-466-8980; 614-466-5087 fax
Counsel for Lance D. Himes,
Interim Director of the Ohio
Department of Health
Case: 14-3464 Document: 89 Filed: 07/15/2014 Page: 41