TIMOTHY S. BLACK, District Judge.
On December 23, 2013, this Court ruled in no uncertain terms that:
The Obergefell ruling was constrained by the limited relief requested by the Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and it directly compels the Court's conclusion today. The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State's ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore,
It is this Court's responsibility to give meaning and effect to the guarantees of the federal constitution for all American citizens, and that responsibility is never more pressing than when the fundamental rights of some minority of citizens are impacted by the legislative power of the majority. As the Supreme Court explained over 70 years ago:
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (emphasis supplied). This principle is embodied by the Court's decision today and by the
This civil action is now before the Court on Plaintiffs' Motion for Declaratory Judgment and Permanent Injunction (Doc. 18) and the parties' responsive memoranda. (Docs. 20 and 25). Plaintiffs include four same-sex couples married in jurisdictions that provide for such marriages, including three female couples who are expecting children conceived via anonymous donors within the next few months and one male couple with an Ohio-born adopted son. All four couples are seeking to have the names of both parents recorded on their children's Ohio birth certificates. More specifically, Plaintiffs seek a declaration that Ohio's refusal to recognize valid same-sex marriages is unconstitutional, a permanent injunction prohibiting Defendants and their officers and agents from enforcing those bans or denying full faith and credit to decrees of adoption duly obtained by same-sex couples in other jurisdictions, and the issuance of birth certificates for the Plaintiffs' children listing both same-sex parents. (Doc. 18 at 1-2).
The general rule in the United States for interstate marriage recognition is the "place of celebration rule," or lex loci contractus, which provides that marriages valid where celebrated are valid everywhere. Historically, Ohio has recognized marriages that would be invalid if performed in Ohio, but are valid in the jurisdiction where celebrated. This is true even when such marriages clearly violate Ohio law and are entered into outside of Ohio with the purpose of evading Ohio law with respect to marriage. Ohio departed from this tradition in 2004 to adopt its marriage recognition ban. Prior to 2004, the Ohio legislature had never passed a law denying recognition to a specific type of marriage solemnized outside of the state.
Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex marriages in the state and to prohibit recognition of same-sex marriages from other states. Sub-section (C) provides the following:
Ohio Rev.Code Ann. § 3101.01.
Also adopted in 2004 was an amendment to the Ohio Constitution, which states:
Ohio Const. art. XV, § 11.
Plaintiffs Brittani Henry and Brittni Rogers met in 2008. They have been in a loving, committed same-sex relationship since that time. On January 17, 2014, they were validly married in the state of New York, which state legally recognizes their marriage. Having established a home together and enjoying the support of their families, the couple decided they wanted to have children. Henry became pregnant through artificial insemination ("AI"), and she is due to deliver a baby boy in June 2014. The sperm donor is anonymous. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son's parent on his birth certificate.
Nicole and Pam Yorksmith met and fell in love in 2006. They were married on October 14, 2008 in California, which state legally recognizes their marriage. The Yorksmith family already includes a three-year-old son born in Cincinnati in 2010. He was conceived through AI using an anonymous sperm donor. Nicole is their son's birth mother, but Pam was fully engaged in the AI process, pregnancy, and birth. They share the ongoing role as parents. However, only Nicole is listed on their son's birth certificate because Defendants will not list the names of both same-sex married parents on the birth certificates of their children conceived through AI.
Failing to have both parents listed on their son's birth certificate has caused the Yorksmith Family great concern. They have created documents attempting to ensure that Pam will be recognized with authority to approve medical care, deal with childcare workers and teachers, travel alone with their son, and otherwise address all the issues parents must resolve. Nicole and Pam allege that Defendants' denial of recognition of Pam's role as parent to their child is degrading and humiliating for the family.
Now Nicole is pregnant with their second child. She expects to give birth in June in Cincinnati. Nicole and Pam are married and will continue to be a married couple when their second child is born, but Defendants have taken the position that they are prohibited under Ohio law from recognizing the California marriage and both married spouses on the birth certificate of the Yorksmiths' baby boy. Without action by this Court, Defendants Jones and Himes will list only one of these Plaintiffs as their son's parent on his birth certificate.
Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed same-sex
Plaintiffs Joseph J. Vitale and Robert Talmas met in 1997. They live in New York City, where they work as corporate executives. Vitale and Talmas married on September 20, 2011 in New York, which state legally recognizes their marriage. The couple commenced work with Plaintiff Adoption S.T.A.R. to start a family through adoption. Adopted Child Doe was born in Ohio in 2013 and custody was transferred to Plaintiff Adoption S.T.A.R. shortly after birth. Vitale and Talmas immediately assumed physical custody and welcomed their son into their home. On January 17, 2014, an Order of Adoption of Adopted Child Doe was duly issued by the Surrogate's Court of the State of New York, County of New York, naming both Vitale and Talmas as full legal parents of Adopted Child Doe.
Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics, for an amended birth certificate listing Adopted Child Doe's adoptive name and naming Vitale and Talmas as his adoptive parents. Based on the experience of Plaintiff Adoption S.T.A.R. with other clients and their direct communications with Defendant Himes's staff at the Ohio Department of Health, Adopted Child Doe will be denied a birth certificate that lists both men as parents. On the other hand, heterosexual couples married in New York who secure an order of adoption from a New York court regarding a child born in Ohio have the child's adoptive name placed on his or her birth certificate along with the names of both spouses as the parents of the adoptive child as a matter of course.
Without action by this Court, Defendant Himes will allow only one of these Plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Vitale and Talmas object to being forced to choose which one of them to be recognized as their son's parent and to allowing this vitally important document to misrepresent the status of their family. They do not wish to expose their son to the life-long risks and harms they allege are attendant to having only one of his parents listed on his birth certificate.
Plaintiffs allege that prior to Governor Kasich, Attorney General DeWine, and prior-Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health provided same-sex married couples such as Plaintiffs Vitale and Talmas with birth certificates for their adopted children,
As a result of Ohio's practice of not amending birth certificates for the adopted children of married same-sex parents, Plaintiff Adoption S.T.A.R. alleges it has been forced to change its placement agreements to inform potential same-sex adoptive parents that they will not be able to receive an accurate amended birth certificate for adopted children born in Ohio. Adoption S.T.A.R. alleges it has expended unbudgeted time and money to change its agreements and advise same-sex adoptive parents of Ohio's discriminatory practice. It alleges it has devoted extra time and money to cases like that of Plaintiffs Vitale and Talmas involving same-sex married couples who adopt children born in Ohio through court actions in other states. Adoption S.T.A.R. alleges that the process to seek an accurate birth certificate for Adopted Child Doe — including participation in this lawsuit — is expected to be a protracted effort that will cause the expenditure of extra time and money.
Adoption S.T.A.R. has served same-sex married couples in previous adoption cases and is currently serving other same-sex married couples in various stages of the adoption process in other states for children born in Ohio. Adoption S.T.A.R. alleges it will serve additional same-sex married couples in this capacity in the future. Adoption S.T.A.R. alleges that its clients' inability to secure amended birth certificates from Defendant Himes accurately listing both same-sex married persons as the legal parents of their adopted children imposes a significant burden on the agency's ability to provide adequate and equitable adoption services to its clients, results in incomplete adoptions and loss of revenue, and frustrates the very purpose of providing adoption services to its clients in the first place.
Plaintiffs go beyond the as-applied challenge pursued in Obergefell and now seek a declaration that Ohio's marriage recognition ban is facially unconstitutional, invalid, and unenforceable. (Doc. 18 at 15). In other words, Plaintiffs allege that "no set of circumstances exists under which the [challenged marriage recognition ban] would be valid," and the ban should therefore be struck down in its entirety. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014) (declaring that Texas's ban on same-sex marriages and marriage recognition "fails the constitutional facial challenge because ... Defendants have failed to provide any — and the Court finds no — rational basis that banning same-sex marriage furthers a legitimate governmental interest").
"A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law." Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir.2012); Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir.1998)); Obergefell, 962 F.Supp.2d at 977. It lies within the sound discretion of the district court to grant or deny a motion for permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Obergefell, 962 F.Supp.2d at
The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Fed. R.Civ.P. 57. In the Sixth Circuit, "[t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir.1984)); see also Obergefell, 962 F.Supp.2d at 977. Both circumstances arise here.
This Court has already held in Obergefell that Ohio's refusal to recognize the out-of-state marriages of same-sex couples violates the Fourteenth Amendment due process "right not to be deprived of one's already-existing legal marriage and its attendant benefits and protections." 962 F.Supp.2d at 978. In the birth certificate context, much like in the death certificate context, the marriage recognition ban denies same-sex married couples the "attendant benefits and protections" associated with state marriage recognition and documentation. This Court further held in Obergefell that the marriage recognition ban "violate[s] Plaintiffs' constitutional rights by denying them equal protection of the laws." Id. at 983. Finally, this Court declared the marriage recognition ban unconstitutional and unenforceable in the death certificate context.
The Court's analysis in Obergefell controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.
Despite the limited relief pursued by the Plaintiffs in that case, this Court's conclusion in Obergefell clearly and intentionally expressed the facial invalidity of Ohio's marriage recognition ban, not only as applied to the Plaintiffs and the issue of death certificates, but in any application to any married same-sex couple. 962 F.Supp.2d at 997. Ohio's marriage recognition ban embodies an unequivocal, purposeful, and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties. This classification, relegating lesbian and gay married couples to a second-class status in which only their marriages are deemed void in Ohio, is the core constitutional violation all of the Plaintiffs challenge.
The Supreme Court explained in Citizens United v. Federal Election Commission that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). The distinction between the two "goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Id. Even in a case explicitly framed only as an as-applied challenge (which this case is not), the Court has authority to facially invalidate a challenged law. "`[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly `as-applied' cases.'" Id. at 331, 130 S.Ct. 876 (quoting Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L.REV. 1321, 1339 (2000)).
It is therefore well within the Court's discretion to find the marriage ban facially unconstitutional and unenforceable in all circumstances on the record before it, and given the Court's extensive and comprehensive analysis in Obergefell pointing to the appropriateness of just such a conclusion, Defendants have been on notice of the likely facial unconstitutionality of the marriage ban since before this case was ever filed.
The Due Process Clause of the Fourteenth Amendment establishes that no state may "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The Due Process Clause protects "vital personal rights essential to the orderly pursuit of happiness by free men," more commonly referred to as "fundamental rights." Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). There are a number of fundamental rights and/or liberty interests protected by the Due Process clause that are implicated by the marriage recognition ban, including the right to marry, the right to remain married,
"The freedom to marry has long been recognized" as a fundamental right protected by the Due Process Clause. Loving, 388 U.S. at 12, 87 S.Ct. 1817 (1967).
First, while states have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual. Accordingly, "
The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff's asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Court consistently describes a general "fundamental right to marry" rather than "the right to interracial marriage," "the right to inmate marriage," or "the right of people owing child support to marry." See Golinski v. U.S. Office of Pers. Mgmt., 824 F.Supp.2d 968, 982 n. 5 (N.D.Cal.2012) (citing Loving, 388 U.S. at 12, 87 S.Ct. 1817; Turner, 482 U.S. at 94-96, 107 S.Ct. 2254); Zablocki v. Redhail, 434 U.S. 374, 383-86, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); accord In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 421 n. 33 (2008) (Turner "did not characterize the constitutional right at issue as `the right to inmate marriage'").
In Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Supreme Court held that the right of consenting adults (including same-sex couples) to engage in private, sexual intimacy is protected by the Fourteenth Amendment's protection of liberty, notwithstanding the
"Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights." In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 430 (quotation omitted). For example, when the Supreme Court held that anti-miscegenation laws violated the fundamental right to marry in Loving, it did so despite a long tradition of excluding interracial couples from marriage. Planned Parenthood v. Casey, 505 U.S. 833, 847-48, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("[I]nterracial marriage was illegal in most States in the 19th century, but 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 ..."); Lawrence, 539 U.S. at 577-78, 123 S.Ct. 2472 ("[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack") (citation omitted). Indeed, the fact that a form of discrimination has been "traditional" is a reason to be more skeptical of its rationality and cause for courts to be especially vigilant.
Cases subsequent to Loving have similarly confirmed that
Defendants also violate the married Plaintiffs' right to remain married by enforcing the marriage bans, which right this Court has already identified as "a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution." Obergefell, 962 F.Supp.2d at 978. "When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court." Id. at 979; see also Windsor, 133 S.Ct. at 2694 (When one jurisdiction refuses recognition of family relationships legally established in another, "the differentiation demeans the couple, whose moral and sexual choices the Constitution protects... and whose relationship the State has sought to dignify").
Finally, the marriage recognition bans also implicate the parenting rights of same-sex married couples with children. The Constitution accords parents significant rights in the care and control of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Parents enjoy unique rights to make crucial decisions for their children, including decisions about schooling, religion, medical care, and with whom the child may have contact. See, e.g., id. (medical decisions); Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (education and religion); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (education); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (visitation with relatives). U.S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances. See Troxel, 530 U.S. at 66, 120 S.Ct. 2054; Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); see also, e.g., In re D.A., 113 Ohio St.3d 88, 862 N.E.2d 829, 832 (2007) (citing Ohio cases on parents' "paramount" right to custody of their children).
As a general matter, the Supreme Court applies strict scrutiny when a state law encroaches on a fundamental right, and thus such scrutiny is appropriate in the context of the right to marry and the right to parental authority. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
The right to marriage recognition has not been expressly recognized as "fundamental," however, and in the previously referenced set of cases establishing the highly-protected status of existing marriage, family, and intimate relationships, the Supreme Court has often applied an
When couples — including same-sex couples — enter into marriage, it generally involves long-term plans for how they will organize their finances, property, and family lives. "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." In re Estate of Lenherr, 455 Pa. 225, 314 A.2d 255, 258 (1974). Married couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with it — including bank accounts, inheritance rights, property, and other rights and benefits associated with marriage — will follow them.
For example, when a parent's legal relationship to his or her child is terminated by the state, it must present clear and convincing evidence supporting its action to overcome the burden of its loss, Santosky v. Kramer, 455 U.S. 745, 753, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); and, here, a similar legal familial relationship is terminated by Ohio's marriage recognition ban. Moreover, the official statutory and constitutional establishment of same-sex couples married in other jurisdictions as a disfavored and disadvantaged subset of relationships has a destabilizing and stigmatizing impact on those relationships. In striking down the statutory provision that had denied gay and lesbian couples federal recognition of their otherwise valid marriages in Windsor, the Supreme Court observed:
133 S.Ct. at 2694 (emphasis supplied).
In the family law context, while opposite-sex married couples can invoke step-parent adoption procedures or adopt children together, same-sex married couples cannot. Ohio courts allow an individual
The benefits of state-sanctioned marriage are extensive, and the injuries raised by Plaintiffs represent just a portion of the harm suffered by same-sex married couples due to Ohio's refusal to recognize and give legal effect to their lawful unions.
Defendants advance a number of interests in support of Ohio's marriage
The stated interest in "preserving the traditional definition of marriage" is not a legitimate justification for Ohio's arbitrary discrimination against gays based solely on their sexual orientation. As federal judge John G. Heyburn II eloquently explained in invalidating Kentucky's similar marriage recognition ban:
Bourke v. Beshear, 996 F.Supp.2d 542, 554, 2014 WL 556729, at *10 (W.D.Ky. Feb. 12, 2014) (emphasis supplied) (declaring Kentucky's anti-recognition provisions unconstitutional on equal protection grounds).
Defendants argue that Windsor stressed that "regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States." 133 S.Ct. at 2692. However, as this Court emphasized in Obergefell, this
Quintessentially, as the Supreme Court has held, marriage confers "a dignity and status of immense import." Windsor, 133 S.Ct. at 2692. When a state uses "its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhance[s] the recognition, dignity, and protection of the class in their own community." Id. Here, based on the record, Defendants have again failed to provide evidence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose this immensely important dignity, status, recognition, and protection, as such a state interest does not exist.
Accordingly, Ohio's refusal to recognize same-sex marriages performed in other jurisdictions violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.
This Court's analysis in Obergefell also compels the conclusion that Defendants violate Plaintiffs' right to equal protection by denying recognition to their marriages and the protections for families attendant to marriage. In Obergefell, this Court noted Ohio's long history of respecting out-of-state marriages if valid in the place of celebration, with only the marriages of same-sex couples singled out for differential treatment. 962 F.Supp.2d at 983-84.
Under Ohio law, if the Henry/Rogers, Yorksmith, and Noe/McCracken couples' marriages were accorded respect, both spouses in the couple would be entitled to recognition as the parents of their expected children. As a matter of statute, Ohio respects the parental status of the non-biologically related parent whose spouse uses AI to conceive a child born to the married couple. See Ohio Rev.Code § 3111.95 (providing that if "a married woman" uses "non-spousal artificial insemination" to which her spouse consented, the spouse "shall be treated in law and regarded as" the parent of the child, and the sperm donor shall have no parental rights); see also Ohio Rev.Code § 3111.03 (providing that a child born to a married couple is presumed the child of the birth mother's spouse).
An Ohio birth certificate is a legal document, not a medical record. Birth certificates for newborn babies are generated by Defendants through use of the Integrated Perinatal Health Information System ("IPHIS") with information collected at birth facilities.
Similarly, when an Ohio-born child is adopted by the decree of a court of another state, the Ohio Department of Health "shall issue ... a new birth record using the child's adoptive name and the names of and data concerning the adoptive parents." Ohio Rev.Code § 3705.12(A)(1). However, the Department of Health refuses to comply with this requirement based on Ohio Rev.Code § 3107.18(A), which provides that "[e]xcept when giving effect to such a decree would violate the public policy of this state, a court decree ... establishing the relationship by adoption, issued pursuant to due process of law by a court of any jurisdiction outside this state ... shall be recognized in this state."
Before Governor Kasich's administration and prior-Defendant Wymyslo's leadership of the Department of Health, Ohio recognized out-of-state adoption decrees of same-sex couples and supplied amended birth certificates identifying the adoptive parents. (See Docs. 4-6, 4-7, and 4-8). However, the current administration takes the position that issuing birth certificates under such circumstances would violate "public policy," i.e., Ohio's purported limitation on adoptions within the State to couples only if those couples are married. O.R.C. § 3107.03(A).
As the Court discussed in Obergefell, the Sixth Circuit has not reviewed controlling law regarding the appropriate level of scrutiny for reviewing classifications based on sexual orientation, such as Ohio's marriage recognition ban, since Windsor. 962 F.Supp.2d at 986. The most recent Sixth Circuit case to consider the issue, Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012), rejected heightened scrutiny by relying on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir.2006), which in turn relied on Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir.1997). As the Court concluded in Obergefell, however, Equality Foundation now rests on shaky ground and there are
As a result, this Court held in Obergefell that lower courts without controlling post-Lawrence precedent on the issue should now apply the criteria mandated by the Supreme Court to determine whether sexual orientation classifications should receive heightened scrutiny. 962 F.Supp.2d at 987. The Court then analyzed the four factors that, to varying degrees, may be considered to determine whether classifications qualify as suspect or quasi-suspect: whether the class (1) has faced historical discrimination, (2) has a defining characteristic that bears no relation to ability to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at 987-91. The Court concluded that "[s]exual orientation discrimination accordingly fulfills all the criteria the Supreme Court has identified, thus Defendants must justify Ohio's failure to recognize same-sex marriages in accordance with a heightened scrutiny analysis," and finally that Defendants "utterly failed to do so." Id. at 991. Subsequent to Obergefell, the Ninth Circuit similarly held that Windsor "requires heightened scrutiny" for classifications based on sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014) ("we are required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection ... Thus, there can no longer be any question that gays and lesbians are no longer a `group or class of individuals normally subject to `rational basis' review.'") (citation omitted). The Court's entire Obergefell analysis applies and controls here, and classifications based on sexual orientation must pass muster under heightened scrutiny to survive constitutional challenge.
The children in Plaintiffs' and other same-sex married couples' families cannot be denied the right to two legal parents, reflected on their birth certificates and given legal respect, without a sufficient justification. No such justification exists.
As the Court further held in Obergefell, even if no heightened level of scrutiny is applied to Ohio's marriage recognition bans, they still fail to pass constitutional muster. 962 F.Supp.2d at 991. The Court noted that "[e]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained," that "some objectives ... are not legitimate state interests," and, even when a law is justified by an ostensibly legitimate purpose, that "[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." Romer, 517 U.S. at 632, 116 S.Ct. 1620; City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Again, the Court's prior analysis controls, and Ohio's marriage recognition bans also fail rational basis review.
Of particular relevance to this case, in Obergefell this Court analyzed and roundly rejected any claimed government justifications based on a preference for procreation or childrearing by heterosexual couples. 962 F.Supp.2d at 994. This Court further concluded that
Windsor, 133 S.Ct. at 2696 (emphasis supplied). All of the federal trial court decisions since Windsor have included similar conclusions on this issue, including that child welfare concerns weigh exclusively in favor of recognizing the marital rights of same-sex couples.
Because this Court has found that Ohio's marriage recognition bans are constitutionally invalid on their face and unenforceable, Defendants no longer have a basis on which to argue that recognizing same-sex marriages on out-of-state adoption decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs' arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that
Finally, Plaintiffs have easily met their burden to demonstrate they are suffering irreparable harm from Defendants' violation of their rights to due process, equal protection, and full faith and credit
"Constitutional violations are routinely recognized as causing irreparable harm unless they are promptly remedied." Obergefell, 962 F.Supp.2d at 996; see also Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (loss of constitutional "freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"); Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (violation of the right to travel interstate constitutes irreparable injury). Without a permanent injunction and declaratory relief, the affected same-sex couples and their children would have to continue to navigate life without the birth certificates that pave the way through numerous transactions, large and small. They would needlessly suffer harmful delays, bureaucratic complications, increased costs, embarrassment, invasions of privacy, and disrespect. Same-sex couples' legal status as parents will be open to question, including in moments of crisis when time and energy cannot be spared to overcome the extra hurdles Ohio's discrimination erects.
Plaintiffs and other affected same-sex couples require injunctive and declaratory relief to lift the stigma imposed by Defendants' disrespect for their spousal and parental statuses. Imposition of these burdens on same-sex couples serves no legitimate public interest that could counteract the severe and irreparable harm imposed by the marriage recognition bans.
Plaintiffs have therefore more than adequately demonstrated their entitlement to declaratory and injunctive relief.
Accordingly, based on the foregoing, Plaintiffs' Motion for Declaratory Judgment
Baker v. Gen. Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee Cnty. v. M.E., White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)).
In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction. Baker, 522 U.S. at 233, 118 S.Ct. 657. Proper full faith and credit analysis distinguishes between public acts, which may be subject to public policy exceptions to full faith and credit, and judicial proceedings, which decidedly are not subject to any public policy exception to the mandate of full faith and credit See id. at 232, 118 S.Ct. 657 ("Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments"); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437, 64 S.Ct. 208, 88 L.Ed. 149 (1943) ("The full faith and credit clause and the Act of Congress implementing it have, for most purposes, placed a judgment on a different footing from a statute of one state, judicial recognition of which is sought in another").
The Supreme Court has thus rejected any notion that a state may disregard the full faith and credit obligation simply because the state finds the policy behind the out-of-state judgment contrary to is own public policies. According to the Court, "our decisions support no roving `public policy exception' to the full faith and credit due judgments." Baker, 522 U.S. at 233, 118 S.Ct. 657; see also Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948) (Full Faith and Credit Clause "ordered submission ... even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it"); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (requiring North Carolina to recognize change in marital status effected by Nevada divorce decree contrary to laws of North Carolina).
Consistent with the guarantee of full faith and credit, Defendant Himes's Department of Health is mandated under a provision of the Vital Statistics section of the Ohio Code to issue an amended birth certificate upon receipt of an adoption decree issued by the court of another state. Pursuant to Ohio Revised Code § 3705.12(A) and (B), upon receipt of a decree of adoption of an Ohio-born child, issued with due process by the court of another state, "the department of health shall issue, unless otherwise requested by the adoptive parents, a new birth record using the child's adopted name and the names of and data concerning the adoptive parents...." This statute does not leave discretion in Defendant Himes's hands to reject duly issued out-of-state adoption decrees based on whether the adoption could have been obtained under Ohio law.
Indeed, as already discussed, before the tenure of prior-Defendant Wymyslo, Ohio issued amended birth certificates based on the out-of-state adoption decrees of same-sex parents, notwithstanding Ohio's purported policy against adoptions by unmarried couples within the State. Only recently has the Department of Health taken the position that Ohio Revised Code. § 3107.18, a separate provision of the "Adoption" section of the Code, frees it of its obligation to issue a corrected birth certificate upon receipt of another state's duly issued judgment of adoption decreeing a same-sex couple as adoptive parents. (Doc. 4-6 at 4-5). According to Defendant Himes, that provision requires the Department of Health to refuse recognition to out-of-state adoption decrees of same-sex parents, whose marriages are disrespected under Ohio law, because "giving effect to such a decree would violate the public policy of this state." Ohio Revised Code § 3107.18.
This backward evolution in Ohio, from granting accurate birth certificates to adoptive same-sex parents and their children, to the current administration's refusal to do so, is yet another manifestation of the irrational animus motivating Defendants' discriminatory treatment of lesbian and gay families. The application of section 3107.18's "public policy" exception to the adoption decree of another state is contrary to Ohio's consistent recognition of the duly-issued adoption decrees of state courts of competent jurisdiction nationwide. See, e.g., Matter of Bosworth, No. 86-AP-903, 1987 WL 14234, at *2 (Ohio Ct.App. 10th Dist. July 16, 1987) (recognizing Florida adoption decree because, "if due process was followed by another state's court in issuing an adoption decree, an Ohio court is mandated to give full faith and credit to that state's decree"); Matter of Swanson, No. 90-CA-23, 1991 WL 76457 (Ohio Ct.App. 5th Dist. May 3, 1991) (recognizing New York adoption decree over objection of Ohio biological parents). Defendant Himes impermissibly injects a "roving `public policy exception' to the full faith and credit due judgments," precisely what the Supreme Court has made clear the Full Faith and Credit Clause prohibits.
The duty to effectuate this command has commonly fallen on state courts in actions to enforce judgments obtained in out-of-state litigation, which is why many Supreme Court cases identify state courts as violators of the state's full faith and credit obligations. See Adar v. Smith, 639 F.3d 146, 171 (5th Cir. 2011) (Weiner, J., dissenting) (citing Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir.1992) ("[U]nder the common law, the procedure to enforce the judgment of one jurisdiction in another required the filing of a new suit in the second jurisdiction to enforce the judgment of the first")). However, this historical fact does not dictate that the command is directed only to state courts. For example, now "all but two or three of the fifty states have enacted some version of the Revised Uniform Enforcement of Foreign Judgments Act, which authorizes nonjudicial officers to register out-of-state judgments, thereby entrusting to them their states' obligations under the [Full Faith and Credit] Clause." Adar, 639 F.3d at 171 (Weiner, J., dissenting) (citation omitted). Ohio's vital statistics statutes likewise transfer to state executive officials the responsibility to receive and recognize out-of-state judgments of adoption and to issue amended Ohio birth certificates based on those judgments. See Ohio Revised Code § 3705.12(A) and (B).
The Fifth Circuit stands alone in holding that federal claims to enforce rights conferred by the Full Faith and Credit Clause are unavailable under § 1983 against nonjudicial state officials. Adar, 639 F.3d at 153. Given that § 1983 creates a remedy for those denied "rights, privileges, or immunities secured by the Constitution and laws," 42 U.S.C. § 1983, and that the Supreme Court has repeatedly held that § 1983 is a remedial statute that must be applied expansively to assure the protection of constitutional rights (see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 700-01, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (§ 1983 is "to be broadly construed, against all forms of official violation[s] of federally protected rights"); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (§ 1983's coverage is to be "broadly construed"); Wayne v. Vill. of Sebring, 36 F.3d 517, 528 (6th Cir.1994) (same)), other circuits have unremarkably entertained such claims. See Rosin v. Monken, 599 F.3d 574, 575 (7th Cir.2010) (adjudicating full faith and credit claim against state actors on the merits in § 1983 action); United Farm Workers v. Ariz. Agric. Emp't Relations Bd., 669 F.2d 1249, 1257 (9th Cir.1982) (same); Lamb Enters., Inc. v. Kiroff, 549 F.2d 1052, 1059 (6th Cir.1977) (propriety of § 1983 claim in federal court to enforce full faith and credit obligation against state judge not questioned, but abstention deemed warranted).
The Supreme Court has employed a three-part test, articulated in Golden State Transit Corp., 493 U.S. at 106, 110 S.Ct. 444, to determine whether a constitutional provision creates a right actionable under § 1983: whether the provision 1) "creates obligations binding on the governmental unit," 2) that are sufficiently concrete and specific as to be judicially enforced, and 3) were "intended to benefit the putative plaintiff." Dennis v. Higgins, 498 U.S. 439, 449, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) (internal quotations and citations omitted). The Full Faith and Credit Clause explicitly creates obligations binding on the states, is concrete and judicially recognizable, and was intended to protect the rights of individuals to require respect across state lines for judgments in their favor. See Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n. 23, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980) ("[T]he purpose of [the Clause] was to preserve rights acquired or confirmed under the ... judicial proceedings of one state by requiring recognition of their validity in other states ....") (quoting Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n of Cal., 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939)); Magnolia Petroleum Co., 320 U.S. at 439, 64 S.Ct. 208 (referring to the Clause as preserving judicially established "rights"); see also Adar, 639 F.3d at 176 (Weiner, J., dissenting) ("For all the same reasons advanced by the Dennis Court in recognizing the private federal right created by the Commerce Clause ... the [Full Faith and Credit] Clause indisputably does confer a constitutional `right' for which § 1983 provides an appropriate remedy").
In Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir.2007), a § 1983 action, the Tenth Circuit held that Oklahoma was required to issue an amended birth certificate listing as parents both members of a California same-sex couple that had legally adopted a child born in Oklahoma, notwithstanding Oklahoma's prohibition against such adoptions within the state. Id. at 1141-42. Oklahoma, like Ohio, had a statute providing for issuance of amended birth certificates for children adopted in other states' courts. The Tenth Circuit ruled that the Full Faith and Credit Clause required Oklahoma "to apply its own law to enforce [those] adoption order[s] in an `even-handed' manner." Id. at 1154 (citing Baker, 522 U.S. at 235, 118 S.Ct. 657). The Tenth Circuit concluded: "We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause." Id. at 1156. Oklahoma's "refusal to recognize final adoption orders of other states that permit adoption by same-sex couples" was therefore "unconstitutional." Id.
The principles and precedent outlined above provide a compelling basis to conclude that the Full Faith and Credit Clause also requires full recognition of Plaintiffs Vitale's and Talmas's New York adoption decree, and this Court so holds.
(As in Obergefell, this Court again acknowledges the continuing pendency of Section 2 of the discredited federal Defense of Marriage Act ("DOMA"), which was not before the Supreme Court in Windsor, and wherein Congress has sought to invoke its power under the Full Faith and Credit Clause to establish that "[n]o State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State," 28 U.S.C. § 1738C. However, as in Obergefell, although Section 2 of DOMA is not specifically before the Court, the implications of today's ruling speak for themselves.)
"[A] party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (internal quotations omitted). If a party can demonstrate injury, however, that party may pursue the rights of others when it can establish that (1) "the party asserting the right has a `close' relationship with the person who possesses the right" and (2) "there is a `hindrance' to the possessor's ability to protect his own interests." Boland v. Holder, 682 F.3d 531, 537 (6th Cir.2012) (internal quotations omitted). The concept of third-party standing is typically disfavored. Kowalski, 543 U.S. at 130, 125 S.Ct. 564; see also Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (outlining reasons why "[f]ederal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation").
Here, Adoption S.T.A.R. fails to satisfy its burden of establishing standing because it fails to satisfy the hindrance requirement. Adoption S.T.A.R. must demonstrate that its clients face some obstacle "in litigating their rights themselves." Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197, 209 (6th Cir.2011). In analyzing this question, the United States Supreme Court has generally looked for "daunting" barriers or "insurmountable procedural obstacles" to support a finding of hindrance. See Miller v. Albright, 523 U.S. 420, 449-50, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring, Kennedy, J., joining) ("A hindrance signals that the rightholder did not simply decline to bring the claim on his own behalf, but could not in fact do so"). Adoption S.T.A.R. has not shown that same-sex couples married in other jurisdictions are hindered from litigating their own rights, and the participation of the other Plaintiffs in this lawsuit demonstrates that such parties are capable of doing so. Moreover, because birth certificates can be amended and reissued, there are no significant time restrictions on the ability of potential third parties to bring their own actions. Under these circumstances, where the time constraints and logistical and emotional burdens that prevented injured third parties from vindicating their rights in Obergefelldo not exist, there is no basis for departing from the ordinary rule that "one may not claim standing... to vindicate the constitutional rights of some third party." Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
Consequently, the Court finds that Plaintiff Adoption S.T.A.R. lacks standing to pursue its claims. The Court also notes, however, that given today's ruling, the question of Adoption S.T.A.R.'s standing is ultimately of no practical effect.
Words and Music by John McCulcheon © 1992 John McCutcheon/Appalsongs (ASCAP)
Oh who would have guessed, who could have seen
Who could have possibly known
All these roads we have traveled, the places we've been
Would have finally taken us home.
So here's to you, three cheers to you
Let's shout it, "Hip, hip horray!"
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
There are those who think families happen by chance
A mystery their whole life through
But we had a voice and we had a choice
We were working and waiting for you.
So here's to you, three cheers to you
Let's shout it, "Hip, hip horray!"
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
No matter the time and no matter the age
No matter how you came to be
No matter the skin, we are all of us kin
We are all of us one family.
So here's to you, three cheers to you
Let's shout it, "Hip, hip horray!"
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!