Case: 1:14-cv-00129-TSB Doc #: 30 Filed: 04/14/14 Page: 1 of 13 PAGEID #: 862

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION BRITTANI HENRY and BRITTNI ROGERS, et al., Plaintiffs, vs. LANCE HIMES, et. al. , Defendants. : : : : : : : : : : :

Case No. 1:14-cv-129 Judge: Timothy S. Black

PLAINTIFFS MEMORANDUM IN OPPOSITION TO A STAY PENDING APPEAL I. Introduction

On this date, this Court issued a much-needed Order permanently enjoining enforcement of Ohio Const. Art. XV, 11 and Ohio Rev. Code 3101.01(C) (collectively, the marriage recognition bans) against same-sex couples validly married outside the State, and requiring the government to recognize such couples as married for all State purposes, including for purposes of issuing new or amended birth certificates reflecting Plaintiff spouses as the parents of their Ohio-born children. The Court also permanently enjoined the State from denying full faith and credit to adoption decrees duly obtained by same-sex couples out of state. Doc. 28, 29. Plaintiffs hereby respond to this Courts request for additional briefing on the Defendants oral motion to stay the Courts Order pending completion of an appeal to the Sixth Circuit. See Doc. 28, at 40 n.25.

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This Court found that the Defendants pose only vague, speculative, and/or unsubstantiated state interests, which rise nowhere near the level necessary to counterbalance the specific, quantifiable, particularized injuries . . . suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are denied to them by the state. Doc. 28, at 25. In making this determination, this Court applied the same traditional factors governing equitable relief that demonstrate Defendants lack of entitlement to a stay. Baker v. Adams Cnty./Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002). For the same reasons Plaintiffs were entitled to the Order on the merits issued by the Court today, Defendants are not entitled to any stay. At minimum, this Court should not stay its Order as to (a) the named Plaintiffs, in all respects, or (b) as to Plaintiffs and other families, the requirement that the State issue birth certificates naming as parents both married same-sex spouses and both adoptive parents of Ohio-born children adopted out of state. To stay the decision would subject these families, and particularly their children, to precisely the irreparable harm this Court decried in todays Order. II. The Facts And Circumstances Of This Case Do Not Meet The Standard For Issuing A Stay. When evaluating a stay pending appeal, a court must consider the traditional factors governing injunctive relief, including (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. Baker, 310 F.3d at 928. As the Sixth Circuit has held: These factors are to be balanced. The strength of the likelihood of success on the merits that needs to be demonstrated is inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. However, in order to justify a stay of the
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district courts ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Id. (emphasis supplied). [T]he movant [for a stay] must address each factor, regardless of its relative strength, providing specific facts and affidavits supporting assertions that these factors exist. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). Defendant cannot make the requisite showing. A. Defendant Cannot Demonstrate Likelihood Of Success On The Merits. To justify a stay, Defendant must demonstrate at least serious questions going to the merits of this Courts decision. Baker, 310 F.3d at 929; see also Griepentrog, 945 F.2d at 153 (ordinarily, only a likelihood of reversal warrants granting a stay pending appeal). Defendant can make no such showing. There is no serious question concerning the merits of this Courts ruling that Ohios marriage bans and denial of full faith and credit to adoption decrees are unconstitutional. Moreover, in an unbroken string, ten federal courts post-Windsor have found that state bans on entering or recognizing same-sex marriages are unconstitutional. See Doc. 28, at 2 n.2 (listing cases). This Courts reasoning is fully consistent with this overwhelming precedent. Defendant has provided no basis on which to distinguish Ohios marriage bans from the many others that have now been found unconstitutional. Indeed, the arguments proffered by Defendant as rational bases justifying Ohios unequal treatment of same-sex spouses are the same justifications that have been thoroughly and consistently discredited by courts across the country, including now in Kentucky, Tennessee, and Michigan. See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *7-8 (W.D. Ky. Feb. 12, 2014), *9-10; Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525, at *6 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, No.

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12-CV-10285, 2014 WL 1100794, at *10, *14-16 (E.D. Mich. Mar. 21, 2014). Given the unanimity of opinion in district courts across the country, there is no serious question as to whether this Court conducted an appropriate constitutional analysis in reaching essentially the same conclusion. See Baker, 310 F.3d at 929 (defendant must at least show a serious question). For this reason alone, a stay is unwarranted. The strength of this precedent also serves to distinguish the Supreme Courts stay of Kitchen v. Herbert, 691 F. Supp. 2d 1181 (D. Utah Dec. 20, 2013), the first federal court decision post-Windsor to strike down a state prohibition on the celebration or recognition of same-sex marriages.1 At the time the Supreme Court granted the stay, Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014), the only other decision arguably on point was this Courts more limited, as-applied ruling in Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013). At that time, there was not yet the unbroken string of federal cases undermining any claim by the Utah defendants to a likelihood of success on appeal. The equation has altered. In the three months since the Supreme Court stayed the Kitchen ruling, eight additional federal court cases have ruled unconstitutional state bans on the celebration and/or recognition of same-sex marriages.2 These decisions have emanated from geographically, demographically, and politically diverse regions of the country across five different federal Circuits. They have also issued from every state within the Sixth Circuit, making especially unlikely that Defendant will prevail on the merits on appeal.
1

As discussed below, Kitchen challenged Utahs refusal to allow marriages of same-sex couples within the state, involving much broader relief than the Order at issue here. The case is distinguishable on that basis as well. 2 Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bostic v. Rainey, No. 2:13cv395, 2014 WL 561987 (E.D. Va. Feb. 13, 2014); Lee v. Orr, No. 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); DeBoer v. Snyder, No. 12-CV10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014); Baskin v. Bogan, No. 1:14-cv-00355-RLY-TAB (S.D. Ind. Apr. 10, 2014).

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B. Defendant Cannot Show Irreparable Harm If A Stay Does Not Issue. The appropriate focus of this second factor is on whether the Defendant will suffer irreparable harm from enforcement of the permanent injunction outweighing the harm that will be inflicted if a stay is granted. In evaluating the harm that will occur, courts generally look to three sub-factors: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Griepentrog, 945 F.2d at 154. The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. Id. (quoting Sampson v. Murray, 415 U.S. 51, 90 (1974)). The harm alleged must be both certain and immediate, rather than speculative or theoretical. Griepentrog, 945 F.2d at 154. Because the likelihood of success factor weighs heavily in Plaintiffs favor, Defendant must make an especially compelling showing of irreparable harm to warrant a stay. See Baker, 310 F.3d at 928 (noting that the likelihood of success and irreparable harm factors are inversely proportional). This Court has already determined that the constitutional violations serve no legitimate public interest, while Plaintiffs and their children would suffer severely from continuation of the marriage recognition bans and denial of birth certificates. Doc. 28, at 21-25, 37-38. Indeed, as this Court has ruled, Ohio has not even a legitimate or rational justification for withholding recognition to the marriages and adoption decrees of same-sex couples. Doc. 28, at 25-27. Since a permanent injunction causes no harm to Defendant or the State in this case, enjoining the marriage recognition bans and denial of full faith and credit pending appeal cannot possibly cause irreparable injury. Importantly, the injunction ordered by this Court is significantly less demanding of Ohio than most of those ordered in other cases addressing marriage rights of same-sex couples,

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including Kitchen and DeBoer. The injunctions entered in those two cases required Utah and Michigan, respectively, not only to recognize valid out-of-state same-sex marriages, but also to celebrate them officially in-state. Kitchen, 2013 WL 6697874, at *30; DeBoer, 2014 WL 1100794, at *1, 17. This Courts injunction is far narrower. Under its terms, Ohio is required solely to recognize the marital status of couples who have entered marriages outside the state. Ohio is not being asked to alter the status of any couple living within its borders, but merely to afford comity and credit to statuses and judgments validly issued by sister states, as Ohio already does in a variety of contexts even when those statuses and judgments clearly violate Ohio law and are entered into outside of Ohio with the purpose of evading Ohios law with respect to marriage. Doc. 28, at 4. Moreover, with this Courts temporary restraining order in Obergfell in July 2013, Order Granting Pls. Mot. for TRO, Obergefell v. Kasich, No. 1:13-cv-00501-TSB (S.D. Ohio July 22, 2013), Doc. 13, Ohio and its citizens have been on notice that the marriage recognition bans are unconstitutional and severely harm the same-sex spouses they single out for second-class status. The State has known for many months that the marriage recognition bans have been pronounced unconstitutional by this federal district court, and yet has continued to deny recognition to marriages even when presented with an adoption decree from another state entitling the family to an accurate birth certificate and despite having issued such birth certificates in prior administrations. Doc. 28, p. 30. Ohio has had ample opportunity to prepare for its obligation to give respect to these marriages.3

The long notice Ohio has had that its marriage recognition bans are constitutionally infirm distinguishes this case from Love v. Beshear, No. 3:13-CV-750-H (formerly Bourke v. Beshear), issuing a stay pending appeal, 2014 U.S. Dist. LEXIS 36076 (W.D. Kentucky Mar. 19, 2014).

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Failure to grant a stay would not cause the magnitude of administrative burdens required to justify the extraordinary step of a stay of a final order. Recognition of out-of-state marriages for tangible purposes happens on a case-by-case basis, as events and circumstances requiring recognition arise. In the unlikely event recognition of the marriages is denied on appeal, the State can cease to grant the recognition from that point on. Furthermore, it is an unavoidable fact that different-sex couples today frequently alter their own marital statuses, through marriage and divorce. The State already ensures in distributing benefits and protections that it accounts for changes in the marital statuses of couples living in Ohio. Were this Courts decision reversed on appeal, the State could turn to the protocols it already has in place to account for alterations in recognition of the marital statuses of same-sex couples. Any burden on the Ohio government is unlikely to qualify as substantial, and in any event [m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. Griepentrog, 945 F.2d at 154 (internal quotations omitted). Already the out-of-state marriages of same-sex couples living or working in Ohio are recognized as valid and consequential by the federal government, which generally looks to the law of the place where a marriage was celebrated, as Ohio historically has, to determine a persons marital status.4 This Courts Order only confirms what the federal government, post-

See, e.g., IRS Rev. Rul. 2013-17, at 10, available at http://www.irs.gov/pub/irs-drop/rr-13-17.pdf (ruling that individuals of the same sex will be considered lawfully married under the Internal Revenue Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages); John OBrien, Director of Healthcare and Insurance, Benefits Administration Letter: Coverage of Same-Sex Spouses, U.S. Office of Personnel Management (July 17, 2013), available at http://www.opm.gov/retirement-services/publications-forms/benefitsadministration-letters/2013/13-203.pdf (benefits coverage under FEHB, FEGLI, FEDVIP, FLTCIP & FSAFEDS now available to legally married same-sex spouses of federal employees or annuitants, regardless of state of residency); Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) (July 17, 2013), available at http://www.justice.gov/eoir/vll/intdec/vol26/3787_correction.pdf (holding Section 3 of DOMA is no longer an impediment to the recognition of same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the state where it was celebrated); Mem. from Walter M. Shaub, Jr., LA-13-10, Effect of the Supreme Courts Decision in United States v. Windsor on the Executive Branch Ethics Program , U.S. Office of Gov. Ethics (Aug. 19, 2013), available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/LA-13-

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Windsor, already recognizes as a matter of federal law. Same-sex couples already have significant motivation to marry out of state to receive federal recognition of their relationships. This Courts Order simply requires the State to recognize that which many other jurisdictions and the federal government already recognize that these couples are indeed validly married and are entitled to the same dignity and legal protections other married families take for granted. This causes no harm to Defendant. The Courts Order also requires Ohio to give the same full faith and credit for birth certificate purposes to out-of-state adoption decrees obtained by same-sex couples that the State accorded to such decrees prior to this administration. The State has asserted no harm to its interests or anyone elses from issuing those accurate birth certificates in the past; nor can it now. Doc.28, at 30. Indeed as this Court has noted there was a time when Ohio was routinely honoring the decrees from other states and placing same-sex parents on Ohio birth certificates. These actions have caused no harm to civil society in Ohio but have instead created a great benefit to those families so impacted. Doc. 28, p. 30. C. A Stay Is Not Required To Prevent Injury To Other Interested Parties.

This Court has already determined that neither Ohio nor its residents will be harmed by the relief ordered. No substantial injury would result from recognition of marriages of samesex couples, nor from giving full recognition to their out-of-state adoption decrees. Baker, 310 F.3d at 928. The federal government recognizes the marriages of same-sex couples in Ohio for an array of purposes, which in turn requires others in Ohio to recognize the marriages in a variety

10--Effect-of-the-Supreme-Court-s-Decision-in-United-States-v--Windsor-on-the-Executive-Branch-EthicsProgram (the U.S. Office of Gov. Ethics now interprets the terms marriage and spouse where those terms are used in federal ethics provisions to include same-sex marriages and spouses, regardless of the employees state of residency).

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of contexts. For example, because the Internal Revenue Service recognizes married lesbian and gay Ohioans as spouses (see note 3 supra), employers of same-sex spouses must give recognition to the marriages in processing federal payroll and other tax materials. The sky has not fallen in Ohio, and nor will it if these same marriages are given recognition for State purposes as well. The only parties vulnerable to irreparable injury are Plaintiffs, other married same-sex couples, and their children, who suffer irreparable harm every day they go without the ordered relief. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). D. The Public Interest Is Not Harmed If A Stay Does Not Issue.

This Court has determined in both this case and in Obergfell that Defendants enforcement of the marriage recognition bans violate multiple constitutionally-guaranteed rights and protections. The State discriminates against validly married same-sex couples, deprives them of their due process rights, and denies full faith and credit to foreign judgments of adoption, all for no legitimate purpose. Maintaining such policies cannot possibly serve the public interest. [T]he public interest is promoted by the robust enforcement of constitutional rights. Obergefell, 962 F. Supp. 2d at 997 (quoting Am. Freedom Def. Initiative v. Suburban 15 Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012)); see also G&V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994) ([I]t is always in the public interest to prevent the violation of a partys constitutional rights.). Any asserted public interest in maintaining the status quo on appeal cannot justify a stay here. See United States Student Assn Found. v. Land, 546 F.3d 373, 388 (6th Cir. 2008) (denying motion to stay preliminary injunction on grounds that defendants were highly unlikely to succeed on the merits and because, without the injunction, plaintiffs First Amendment rights

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were in jeopardy, despite one dissenters concern that maintaining injunction would seriously alter[] the status quo on the eve of an election); United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Regl Transit Auth., 163 F.3d 341, 348 (criticizing judicial reliance on the status quo). The public interest, and indeed all the relevant factors, weigh in favor of denying Defendants request for a stay and maintaining this Courts injunction. III. At Minimum, This Court Should Not Stay Its Order As To The Named Plaintiffs, As Well As To Other Same-Sex Couples Seeking New And Amended Birth Certificates.

Even if this Court considers a stay of its full Order warranted, this Court should not issue a stay with respect to the Plaintiffs and the pressing need for birth certificates specifically raised in this case. A. The Court Should Not Stay Its Order As To The Named Plaintiffs. At a minimum, this Court should not stay enjoining enforcement of the marriage recognition bans as applied to the named Plaintiffs in this case. This would be consistent with this Courts prior order in Obergefell, which remains in effect on appeal. Even more recently, the Middle District of Tennessee refused to stay a preliminary injunction enjoining officers of Tennessee from enforcing that states anti-recognition laws (in an as-applied challenge) against the plaintiffs in that case. See Tanco, No. 3:13-cv-01159, Doc. 78 (decided March 20, 2014). The named Plaintiffs have demonstrated that they will suffer specific, imminent, severe, and irreparable harm absent relief recognizing them as the parents of their children and granting them accurate birth certificates. The Plaintiff mothers in this case expect their babies any week, long before the Sixth Circuit would rule on any appeal; they should receive accurate birth certificates without delay. The Vitale/Talmas Family and their son likewise should not be left in

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the limbo of having no birth certificate reflecting and protecting their family. They would be severely curtailed in their ability to travel and would lack the security of a birth certificate every day the Courts order was stayed. And all the Plaintiff couples, and their children, deserve the dignity and security of having the marriages recognized in Ohio for other relevant purposes. As in Obergefell, this Court should not stay its Order as it applies to recognition of the marriages of the named Plaintiffs, for birth certificate and all other purposes. B. The Court Should Not Stay Its Order As To Other Married Same-Sex Couples Seeking New And Amended Birth Certificates. This Court should also not stay its Order as to other same-sex couples entitled to new or amended birth certificates for their children under the terms of the Order. Married same-sex parents giving birth to their children in Ohio should both be recognized as parents of their children, and the State should issue them accurate birth certificates identifying both spouses as parents. Likewise, same-sex couples, whether married or not, with duly issued out-of-state adoption decrees should receive full faith and credit for those decrees and amended birth certificates accurately reflecting their resulting legal family composition. As this Court has found, the harms to children and same-sex couples inflicted by the States denial of birth certificates and recognition of parent-child relationships are far-reaching and inflict severe and irreparable harm. Doc. 28, at 38-39. Critically, the State until recently issued birth certificates for children adopted by samesex couples accurately listing both adults as parents. Doc. 28, at 30. Defendant has not and cannot explain how a return to this policy could possibly harm either the State or the public interest. Maintenance of the Courts injunction in this regard achieves solely a return to business as-had-been usual.

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As a practical matter, a stay of the Courts ruling with respect to birth certificates would likely spawn a multiplicity of individual lawsuits by same-sex couples who are expecting babies in Ohio and have adopted Ohio-born children out of state, as this case makes its way up on appeal. This Courts facial ruling should make that burden on individual couplesand on the courtunnecessary. These families share the same need for accurate birth certificates as Plaintiffs in this case, and as thousands of other Ohio families. Defendant cannot demonstrate how giving children born in Ohio the security of having both their parents listed on their birth certificates results in anything but good. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants motion for a stay pending appeal. Respectfully submitted,

Lisa T. Meeks #0062074 Newman & Meeks Co., LPA 215 E. Ninth Street, Suite 650 Cincinnati, OH 45202 Phone: 513.639.7000 Fax: 513.639.7011 lisameeks@newman-meeks.com Ellen Essig 105 East Fourth Street Suite 400 Cincinnati, OH 45202 Phone: 513.698.9345 Fax: 513.345.2588 ee@kgnlaw.com Attorneys for Plaintiffs

/s/ Alphonse A. Gerhardstein Alphonse A. Gerhardstein # 0032053 Trial Attorney for Plaintiffs Jennifer L. Branch #0038893 Jacklyn Gonzales Martin #0090242 Gerhardstein & Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Fax: 513. 345-5543 agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs Susan L. Sommer M. Currey Cook Lambda Legal Defense & Education Fund,
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Inc. 120 Wall Street, 19th Floor New York, New York 10005 Phone: 212.809.8585 Fax: 212.809.0055 ssommer@lambdalegal.org ccook@lambdalegal.org Attorneys for Plaintiffs admitted Pro Hac Vice Paul D. Castillo #0081813 Lambda Legal Defense & Education Fund, Inc. 3500 Oak Lawn Avenue, Suite 500 Dallas, Texas 75219 Phone: 214.219.8585 Fax: 214.219.4455 Pcastillo@lambdalegal.org Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on April 14, 2014, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Courts electronic filing system. Parties may access this filing through the Courts system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically.

/s/Alphonse A Gerhardstein Trial Attorney for Plaintiffs

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