No. 14-556

In the Supreme Court of the United States

______________________________
JAMES OBERGEFELL ET AL.,
Petitioners,
v.
RICHARD HODGES, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH,
Respondent.
______________________________
BRITTANI HENRY ET AL.,
Petitioners,
v.
RICHARD HODGES, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH,
Respondent.
______________________________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT

______________________________
BRIEF FOR RESPONDENT
______________________________

MICHAEL DEWINE
Attorney General of Ohio
ERIC E. MURPHY*
State Solicitor
*Counsel of Record
STEPHEN P. CARNEY
PETER T. REED
Deputy Solicitors
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
eric.murphy@
ohioattorneygeneral.gov
Counsel for Respondent

 QUESTION PRESENTED
Does the Fourteenth Amendment require a State
to recognize a marriage between two people of the
same sex when their marriage was lawfully licensed
and performed out-of-state?

 ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
TABLE OF CONTENTS .............................................ii
TABLE OF AUTHORITIES ....................................... v
COUNTERSTATEMENT ........................................... 1
A. In 2004, Ohio Twice Retained Marriage‟s
Traditional Definition ...................................... 1
B. Petitioners
Brought
Two
Suits
Challenging Ohio‟s Decision Not To
Recognize
Out-Of-State
Same-Sex
Marriages ......................................................... 2
C. The Sixth Circuit Held That The
Constitution Leaves The Question Of
Same-Sex Marriage To Democracy ................. 4
SUMMARY OF ARGUMENT .................................... 5
ARGUMENT ............................................................. 10
I. WINDSOR LEAVES MARRIAGE RECOGNITION TO
FEDERALISM‟S ACTIVE DEMOCRATIC PROCESSES .. 11
A. A Recognition Right Conflicts With The
Full Faith And Credit Clause ........................ 11
B. A Recognition Right Conflicts With The
Constitution‟s Federalist Design ................... 13
1. Federalism enhances liberty in the
domestic-relations context ........................ 13
2. Windsor promoted federalism, but a
recognition right would erode it ............... 16

 iii
C. A Recognition Right Conflicts With The
Constitutional Commitment To Democracy
And The First Amendment As The Means
For Social Change .......................................... 21
1. The Constitution delegates most
sensitive policy choices to democratic
debates, not judicial mandates ................. 21
2. A recognition right would thwart the
local democracies Windsor fostered ......... 24
D. A Recognition Right Departs From The
Constitution‟s “Animus” Doctrine ................. 29
1. The Court‟s cases invalidate laws that
are objectively explainable only on
prejudice grounds ..................................... 29
2. Windsor applied animus doctrine, but a
recognition right transforms it ................. 31
II. GENERAL
FOURTEENTH
AMENDMENT
STANDARDS CONFIRM THAT STATES MAY
DECLINE TO RECOGNIZE OUT-OF-STATE SAMESEX MARRIAGES .................................................... 35
A. Ohio‟s Recognition Laws Infringe No
Fundamental Right ........................................ 36
1. A recognition right would depart from
tradition .................................................... 36
2. No new consensus shows a new right ...... 40
B. Ohio‟s
Recognition
Laws
Do
Not
Discriminate Along Suspect Lines ................ 43
1. Ohio‟s recognition laws are not subject
to heightened scrutiny based on sexual
orientation ................................................. 43

 iv
2. Ohio‟s recognition laws do not
discriminate against any gender .............. 50
C. Ohio‟s Recognition Laws Rationally
Promote Important State Interests ............... 51
CONCLUSION.......................................................... 59

 v
TABLE OF AUTHORITIES
Cases

Page(s)

Alden v. Maine,
527 U.S. 706 (1999) ....................................... 13, 55
Armour v. City of Indianapolis,
132 S. Ct. 2073 (2012) ......................................... 56
Atkins v. Virginia,
536 U.S. 304 (2002) ............................................. 41
Baker v. Nelson,
409 U.S. 810 (1972) ............................. 4, 38, 44, 47
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014) ............................... 28
Bigelow v. Virginia,
421 U.S. 809 (1975) ............................................. 54
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ................................. 34, 35, 52
Boddie v. Connecticut,
401 U.S. 371 (1971) ............................................. 56
Bond v. United States,
131 S. Ct. 2355 (2011) ....................... 13, 14, 17, 24
Bowsher v. Synar,
478 U.S. 714 (1986) ............................................. 19
Brandenburg v. Hous. Auth.,
253 F.3d 891 (6th Cir. 2001) ............................... 12
Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993) ....................................... 46, 47
Brzonkala v. Va. Polytechnic Inst. & State
Univ.,
169 F.3d 820 (4th Cir. 1999) ............................... 25

 vi
Burnham v. Superior Ct. of Cal.,
495 U.S. 604 (1990) ............................................. 53
Burns v. State,
1872 WL 895 (Ala. 1872) ..................................... 38
Catalano v. Catalano,
170 A.2d 726 (Conn. 1961) .................................. 32
Christian Legal Soc’y v. Martinez,
561 U.S. 661 (2010) ....................................... 27, 46
Christiansen v. Christiansen,
253 P.3d 153 (Wyo. 2011) .................................... 55
Citizens United v. FEC,
558 U.S. 310 (2010) ............................................. 22
City of Boerne v. Flores,
521 U.S. 507 (1997) ............................................. 19
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ...................................... passim
Clinton v. City of New York,
524 U.S. 417 (1998) ....................................... 14, 20
Commonwealth of Australia v. Australian
Capital Territory,
[2013] HCA 55 (H.C. Austl. Dec. 12,
2013)..................................................................... 20
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ..................................... 50
Conn v. Gabbert,
526 U.S. 286 (1999) ............................................. 12
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) ..................... 32

 vii
Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of
Health,
497 U.S. 261 (1990) ............................................. 40
Dandridge v. Williams,
397 U.S. 471 (1970) ...................................... passim
Danforth v. Minnesota,
552 U.S. 264 (2008) ............................................. 15
Davis v. Seller,
108 N.E.2d 656 (Mass. 1952) .............................. 32
DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs.,
489 U.S. 189 (1989) ................................. 14, 20, 39
District Attorney’s Office for Third Judicial
Dist. v. Osborne,
557 U.S. 52 (2009) ......................................... 18, 37
Emp’t Div., Dep’t of Human Res. of Ore. v.
Smith,
494 U.S. 872 (1990) ................................. 15, 22, 27
F.C.C. v. Beach Commc’n, Inc.,
508 U.S. 307 (1993) ....................................... 51, 52
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ....................................... 21, 30
Franchise Tax Bd. of Cal. v. Hyatt,
538 U.S. 488 (2003) ............................................. 11
Gardner v. Vespia,
252 F.3d 500 (1st Cir. 2001) ................................ 12
Gonzales v. Carhart,
550 U.S. 124 (2007) ....................................... 24, 28
Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ........................ 33, 55

 viii
Graham v. Florida,
560 U.S. 48 (2010) ............................................... 40
Gregory v. Ashcroft,
501 U.S. 452 (1991) ............................................. 14
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................. 41
Hämäläinen v. Finland,
No. 37359/09 (Eur. Ct. H.R. July 16,
2014)..................................................................... 42
Harris v. McRae,
448 U.S. 297 (1980) ....................................... 22, 45
Heath v. Alabama,
474 U.S. 82 (1985) ............................................... 53
Heller v. Doe,
509 U.S. 312 (1993) ............................................. 52
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006)............................... 45, 50
Hesington v. Hesington’s Estate,
640 S.W.2d 824 (Mo. Ct. App. 1982) ................... 32
Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) ......................................... 48
House v. Mayes,
219 U.S. 270 (1911) ............................................. 53
Huntington v. Attrill,
146 U.S. 657 (1892) ............................................. 54
In re Mortenson’s Estate,
316 P.2d 1106 (Ariz. 1957) .................................. 15
In re Stiles Estate,
391 N.E.2d 1026 (Ohio 1979) ........................ 33, 35

 ix
In re Stull’s Estate,
39 A. 16 (Pa. 1898)......................................... 32, 55
Jackman v. Rosenbaum Co.,
260 U.S. 22 (1922) ............................................... 37
Jaffee v. Redmond,
518 U.S. 1 (1996) ................................................. 40
Johnson v. California,
543 U.S. 499 (2005) ............................................. 51
Johnson v. Robison,
415 U.S. 361 (1974) ............................................. 52
Katzenbach v. Morgan,
384 U.S. 641 (1966) ............................................. 52
Kelo v. City of New London,
545 U.S. 469 (2005) ............................................. 44
Kennedy v. Louisiana,
554 U.S. 407 (2008) ....................................... 41, 42
The Kensington,
183 U.S. 263 (1902) ............................................. 53
Knott v. Botany Worsted Mills,
179 U.S. 69 (1900) ............................................... 53
Laikola v. Engineered Concrete,
277 N.W.2d 653 (Minn. 1979) ............................. 32
Lane v. Franks,
134 S. Ct. 2369 (2014) ......................................... 22
Latta v. Otter,
2015 WL 128117 (9th Cir.
Jan. 9, 2015) ............................................ 27, 40, 48
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ............................... 50

 x
Lawrence v. Texas,
539 U.S. 558 (2003) ...................................... passim
Lindsey v. Normet,
405 U.S. 56 (1972) ............................................... 39
Lochner v. New York,
198 U.S. 45 (1905) ................................... 17, 23, 28
Loving v. Virginia,
388 U.S. 1 (1967) .......................................... passim
Lyng v. Castillo,
477 U.S. 635 (1986) ....................................... 39, 45
Lyng v. UAW,
485 U.S. 360 (1988) ................................. 30, 35, 44
Maher v. Roe,
432 U.S. 464 (1977) ....................................... 15, 29
Mass. Bd. of Retirement v. Murgia,
427 U.S. 307 (1976) ....................................... 45, 56
Maynard v. Hill,
125 U.S. 190 (1888) ............................................. 16
Mazzolini v. Mazzolini,
155 N.E.2d 206 (Ohio 1958) .............. 33, 35, 55, 57
McCulloch v. Maryland,
17 U.S. 316 (1819) ............................................... 23
McDonald v. City of Chicago,
561 U.S. 742 (2010) ............................................. 12
Medina v. California,
505 U.S. 437 (1992) ............................................. 12
Michael H. v. Gerald D.,
491 U.S. 110 (1989) ........................... 37, 38, 40, 41

 xi
Missouri, K. & T. Ry. Co. of Tex. v. May,
194 U.S. 267 (1904) ....................................... 14, 23
Moore v. City of East Cleveland,
431 U.S. 494 (1977) ............................................. 39
NASA v. Nelson,
562 U.S. 134 (2011) ............................................. 19
Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012) ......................................... 16
Nevada v. Hall,
440 U.S. 410 (1979) ............................................. 11
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ....................................... 17, 58
New York v. United States,
505 U.S. 144 (1992) ............................................. 13
Norwood v. Harrison,
413 U.S. 455 (1973) ............................................. 39
Pac. Emp’rs Ins. Co. v. Indus. Accident
Comm’n of Cal.,
306 U.S. 493 (1939) ............................................. 13
Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n,
461 U.S. 190 (1983) ............................................. 30
Pace v. Alabama,
106 U.S. 583 (1883) ............................................. 38
Parham v. Hughes,
441 U.S. 347 (1979) ............................................. 51
Paul v. Davis,
424 U.S. 693 (1976) ............................................. 39
Penry v. Lynaugh,
492 U.S. 302 (1989) ............................................. 41

 xii
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) ....................................... 46, 50
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) ............................................. 39
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ...................................... passim
Poe v. Ullman,
367 U.S. 497 (1961) ............................................. 41
Port v. Cowan,
44 A.3d 970 (Md. 2012) ....................................... 55
Printz v. United States,
521 U.S. 898 (1997) ............................................. 16
Reno v. Flores,
507 U.S. 292 (1993) ................................. 24, 36, 37
Roe v. Wade,
410 U.S. 113 (1973) ............................................. 41
Romer v. Evans,
517 U.S. 620 (1996) ...................................... passim
Roper v. Simmons,
543 U.S. 551 (2005) ............................................. 41
Rust v. Sullivan,
500 U.S. 173 (1991) ............................................. 39
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) .......................................... passim
Schalk and Kopf v. Austria,
No. 30141/04 (2010) ............................................. 42
Schuette v. Coal. to Defend Affirmative
Action,
134 S. Ct. 1623 (2014) .................................. passim

 xiii
Shelby Cnty. v. Holder,
133 S. Ct. 2612 (2013) ......................................... 19
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ............................................. 39
Smith v. Robbins,
528 U.S. 259 (2000) ............................................. 18
Sosna v. Iowa,
419 U.S. 393 (1975) ................................. 15, 18, 56
Stanford v. Kentucky,
492 U.S. 361 (1989) ............................................. 41
State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408 (2003) ............................................. 53
State v. Brown,
23 N.E. 747 (Ohio 1890) ...................................... 33
Sun Oil Co. v. Wortman,
486 U.S. 717 (1988) ............................................. 12
Town of Greece v. Galloway,
134 S. Ct. 1811 (2014) ......................................... 58
Travers v. Reinhardt,
205 U.S. 423 (1907) ............................................. 15
Tuan Anh Nguyen v. I.N.S.,
533 U.S. 53 (2001) ............................................... 50
Turner v. Safley,
482 U.S. 78 (1987) ............................................... 38
U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) ................................. 29, 30, 33
U.S. R.R. Retirement Bd. v. Fritz,
449 U.S. 166 (1980) ............................................. 52

 xiv
United States v. Associated Press,
52 F. Supp. 362 (S.D.N.Y. 1943) ......................... 23
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) ............................................. 47
United States v. Morrison,
529 U.S. 598 (2000) ............................................. 17
United States v. O’Brien,
391 U.S. 367 (1968) ............................................. 30
United States v. Virginia,
518 U.S. 515 (1996) ....................................... 50, 51
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................. passim
Vance v. Bradley,
440 U.S. 93 (1979) ............................................... 52
Washington v. Davis,
426 U.S. 229 (1976) ............................................. 46
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................... passim
Wilkins v. Zelichowski,
140 A.2d 65 (N.J. 1958) ....................................... 32
Williams v. North Carolina,
317 U.S. 287 (1942) ............................................. 15
Williams v. North Carolina,
325 U.S. 226 (1945) ............................................. 15
Williams v. Oates,
1845 WL 1030 (N.C. 1845) .................................. 32
Williamson v. Lee Optical of Okla. Inc.,
348 U.S. 483 (1955) ............................................. 24

 xv
Zablocki v. Redhail,
434 U.S. 374 (1978) ....................................... 38, 39
Statutes, Rules, and Constitutional Provisions
Ohio Const. art. XV, § 11 ............................................ 2
1 Ohio Laws 31 (1803) ................................................ 1
150 Ohio Laws pt. III 3403 (2004) ............................. 1
Ohio Rev. Code § 3101.01(C) ...................................... 1
Ohio Rev. Code § 3101.01(C)(3)(a)-(b) ........................ 1
Ohio Rev. Code § 3107.0611 ..................................... 57
Ohio Rev. Code § 3111.03 ......................................... 57
Ohio Rev. Code § 3111.95(A) ...................................... 3
Ohio Rev. Code § 3111.97 ......................................... 57
Ohio Rev. Code § 3705.09(F) .................................... 57
Ohio Rev. Code § 5121.21(E) .................................... 57
Ohio Rev. Code § 5747.08(E) .................................... 57
U.S. Const. art. IV, § 1 .............................................. 11
Other Authorities
David B. Oppenheimer et al., Religiosity
and Same-Sex Marriage in the United
States and Europe, 32 Berkeley J. Int‟l
L. 195 (2014) ........................................................ 42
David R. Upham, Interracial Marriage &
the Original Understanding of the
Privileges or Immunities Clause, 42
Hastings Const. L.Q. 213 (2015) ......................... 38
1 Francis Wharton, A Treatise on the
Conflict of Laws (1905) ........................................ 55

 xvi
Gary Gates, Same-Sex Couples in Ohio,
April 2014, available at
http://williamsinstitute.law.ucla.edu/wpcontent/uploads/OH-same-sex-couplesdemo-apr-2014.pdf ............................................... 57
2 Herman Vandenburg Ames, The Proposed
Amendments to the Constitution of the
United States During the First Century
of Its History 190 (U.S. Government
Printing Office 1897) ........................................... 15
Initiative & Referendum Inst., Same-Sex
Marriage (Sept. 2012), available at
http://www.iandrinstitute.org/BW%2020
12-1%20Marriage.pdf .......................................... 26
Joseph Story, Commentaries on the Conflict
of Laws (Little, Brown, & Co. 6th ed.
1865)..................................................................... 32
Marriage and Divorce—Amendments of the
Constitution of the United States:
Hearing on S.J. Res. 31 Before a
Subcomm. of the Comm. on the
Judiciary, 67th Cong. (1921)............................... 15
Nate Silver, How Opinion on Same-Sex
Marriage is Changing, and What it
Means, N.Y. Times (Mar. 26, 2013) .................... 48
Ohio Ballot Board, Pending Statewide
Ballot Issues, available at
http://www.sos.state.oh.us/SOS/LegnAnd
BallotIssues/BallotBoard.aspx (last
visited Mar. 24, 2014) .......................................... 49

 xvii
Patrick J. Borchers, Baker v. General
Motors: Implications for
Interjurisdictional Recognition of NonTraditional Marriages, 32 Creighton L.
Rev. 147 (1998) .............................................. 11, 32
Pew Res. Ctr., Gay Marriage Around the
World, available at
http://www.pewforum.org/2013/12/19/gay
-marriage-around-the-world (last visited
Mar. 24, 2015) ...................................................... 42
Restatement (First) of Conflict of Laws
§ 132 (1934) .......................................................... 55
Restatement (Second) Conflicts of Laws
§ 283 (1971) .......................................................... 32
Robin Fretwell Wilson, Marriage of
Necessity: Same-Sex Marriage and
Religious Liberty Protections, 64 Case W.
Res. L. Rev. 1161 (2014) ................................ 27, 48
Sec‟y of State, State Issue 1: Nov. 2, 2004,
available at
http://www.sos.state.oh.us/sos/elections/
Research/
electResultsMain/2004ElectionsResults/
04-1102Issue1.aspx (last visited Mar. 25,
2015)....................................................................... 1

 COUNTERSTATEMENT
A. In 2004, Ohio Twice Retained Marriage’s
Traditional Definition
Ohio has always followed the traditional definition of marriage as between a man and a woman. 1
Ohio Laws 31, 31 (1803). In 2004, as debate over
same-sex marriage grew, Ohioans twice voted to retain this definition.
Ohio lawmakers initially passed a law clarifying
Ohio‟s public policy. 150 Ohio Laws pt. III 3403,
3403-07 (2004). The codified law stated:
(1) Any marriage between persons of the
same sex is against the strong public policy of
this state. Any marriage between persons of
the same sex shall have no legal force or effect
in this state and, if attempted to be entered into in this state, is void ab initio and shall not
be recognized by this state.
(2) Any marriage entered into by persons of
the same sex in any other jurisdiction shall be
considered and treated in all respects as having no legal force or effect in this state and
shall not be recognized by this state.
Ohio Rev. Code § 3101.01(C). The law disclaimed
any intent to prohibit non-marriage-based benefits or
to affect private contracts for those in same-sex relationships. Id. § 3101.01(C)(3)(a)-(b).
Around the same time, litigants were challenging
similar laws. Ohio‟s citizens thus defined marriage
in Ohio‟s Constitution to ensure that courts would
respect their democratic choices. The amendment
garnered over three million votes. Sec‟y of State,
State Issue 1: Nov. 2, 2004, available at

 2
http://www.sos.state.oh.us/sos/elections/Research/
electResultsMain/2004ElectionsResults/041102Issue1.aspx (last visited Mar. 25, 2015).
Ohio‟s Constitution provides: “Only a union between one man and one woman may be a marriage
valid in or recognized by this state and its political
subdivisions. This state and its political subdivisions
shall not create or recognize a legal status for relationships of unmarried individuals that intends to
approximate the design, qualities, significance or effect of marriage.” Ohio Const. art. XV, § 11.
B. Petitioners Brought Two Suits Challenging Ohio’s Decision Not To Recognize
Out-Of-State Same-Sex Marriages
1. Obergefell v. Hodges. James Obergefell and
John Arthur brought the first suit challenging Ohio‟s
recognition laws. JA68-69. When they sued, Arthur
(who has since died) was tragically in hospice care.
JA68, 367. The couple had flown to Maryland, wed
inside the jet, and returned to Ohio the same day.
JA23-25, 70. They received preliminary relief requiring the Director of Ohio‟s Department of Health to
identify Arthur as married and Obergefell as his
spouse on Arthur‟s death certificate. JA55. Two
more plaintiffs then joined the suit. Petitioner David
Michener married William Ives in Delaware, and
Ives later died unexpectedly. JA71. Petitioner Robert Grunn, a funeral director, has same-sex couples
as clients. JA76-78, 84-87.
The district court granted these Petitioners a
permanent injunction in the death-certificate context. Pet. App. 217a-18a. Under due process, it
adopted a new fundamental “right to remain mar-

 3
ried,” and found that Ohio could not satisfy heightened scrutiny. Pet. App. 173a-82a. Under equal protection, the court suggested that Ohio recognized all
out-of-state opposite-sex marriages that were lawful
where performed. Pet. App. 185a-86a. It then held
that heightened scrutiny applied to sexualorientation classifications, but that Ohio lacked even
a rational basis for its laws. Pet. App. 192a-212a.
2. Henry v. Hodges. The Henry Petitioners—four
same-sex couples married in States that permit those
marriages and the adopted son of one of the couples—filed the second suit. JA372-75.
Three couples (one living in Ohio, two in Kentucky) were married in other States—New York
(Brittani Henry and LB Rogers), California (Nicole
and Pam Yorksmith), and Massachusetts (Kelly Noe
and Kelly McCracken). JA394, 398, 402. Three of
these Petitioners conceived children through artificial insemination and delivered their children in
Ohio. JA394-95, 399, 402; Pet. App. 21a. They
sought to have their respective partners listed on the
birth certificates. JA374. Ohio law treats a woman‟s
husband as a child‟s natural father if he consented to
the woman conceiving the child through artificial insemination. Ohio Rev. Code § 3111.95(A). But Ohio
has not extended this rule to the non-birth partner
for same-sex couples. JA376-79.
The fourth couple, New Yorkers Joseph Vitale
and Robert Talmas, adopted an Ohio child in a New
York court. JA405. They sought an amended birth
certificate from Ohio listing the couple as the parents
based on that adoption decree (as the State does for
opposite-sex out-of-state married couples). JA380-81,
412. But because Ohio does not recognize same-sex

 4
marriage, the couple could not have both names
listed on the birth certificate. JA405-06, 411-12.
These Petitioners alleged, as relevant here, that
the failure to recognize their same-sex marriages violated the Fourteenth Amendment. JA389. The same
district court from Obergefell ultimately enjoined the
Director of Ohio‟s Department of Health from “denying same-sex couples validly married in other jurisdictions all the rights, protections, and benefits of
marriage provided under Ohio law.” Pet. App. 151a.
For due process, it said that this case implicated
three rights—to marry, to remain married, and to
parental authority—and that the burdens on the
couples outweighed the State‟s interests. Pet. App.
123-37a. For equal protection, its analysis tracked
its Obergefell decision. Pet. App. 137a-47a.
C. The Sixth Circuit Held That The Constitution Leaves The Question Of Same-Sex
Marriage To Democracy
The Sixth Circuit held that the Fourteenth
Amendment does not require States to license samesex marriage or to recognize same-sex marriages licensed elsewhere.
Licensing. The court offered seven reasons why
the Fourteenth Amendment does not require States
to license same-sex marriage. First, it viewed lower
courts as bound by Baker v. Nelson, 409 U.S. 810
(1972). Pet. App. 23a-29a. Second, the Fourteenth
Amendment‟s original meaning did not include a
right to same-sex marriage. Pet. App. 30a-32a.
Third, the court identified two rational reasons for
traditional marriage. Pet. App. 32a-41a. It is rational, the court stated, to recognize that marriage

 5
was adopted “not to regulate love but to regulate sex,
most especially the intended and unintended effects
of male-female intercourse.” Pet. App. 33a. Further,
the court found it rational to act cautiously before
changing a universal norm. Pet. App. 36a. Fourth,
state reaffirmations of traditional marriage were not
triggered by “animus” against gays and lesbians.
Pet. App. 41a-47a. Fifth, same-sex marriage was not
included within the fundamental “right to marry.”
Pet. App. 47a-51a. Sixth, the court rejected heightened equal-protection scrutiny for sexual-orientation
classifications. Pet. App. 51a-58a. Seventh, the
court found no evolving consensus mandating samesex marriage. Pet. App. 58a-63a.
Recognition. For Ohio‟s recognition issue, the
court started with the Full Faith and Credit Clause.
That clause never “„require[d] a State to apply another State‟s law in violation of its own legitimate
public policy.‟” Pet. App. 64a (citation omitted). And
the Fourteenth Amendment did not change things,
because a State could rationally prefer its own laws.
Pet. App. 64a-65a. Nor did the refusal to recognize
out-of-state same-sex marriage show animus. Petitioners misunderstood Ohio law when they said that
“Ohio would recognize as valid any heterosexual
marriage that was valid in the State that sanctioned
it.” Pet. App. 66a. Ohio courts had stated that some
heterosexual marriages “would not be recognized in
the State” even if valid elsewhere. Pet. App. 67a.
SUMMARY OF ARGUMENT
Both United States v. Windsor, 133 S. Ct. 2675
(2013), and general Fourteenth Amendment principles prove that if States may decline to license same-

 6
sex marriage, they may decline to recognize same-sex
marriages licensed elsewhere.
I. Windsor‟s facts and its rationales compel a ruling for Ohio.
Federal v. State Recognition. Windsor involved
federal recognition of marriage, which is not specifically addressed by the Constitution. Yet state recognition of marriage is addressed by the Full Faith and
Credit Clause. That clause has always allowed a
State to choose its marriage laws over another
State‟s laws when those out-of-state laws are against
its public policy. Petitioners should not be able to
avoid that undisputed result merely by asserting a
Fourteenth Amendment claim instead.
Federalism. Federalism had “central relevance”
to Windsor‟s holding that Section 3 of the federal Defense of Marriage Act (DOMA) violated the Fifth
Amendment. Federalism fosters political liberty (the
freedom of communities to govern) and personal liberty (the freedom of individuals against government).
Windsor, by relying on federalism to interpret the
Fifth Amendment, promoted New York‟s political liberty to decide this question for itself and to foster the
personal interests of its citizens. These federalism
principles support Ohio. The Court‟s intervention
here would undermine Ohioans‟ liberty to decide this
issue, just as Windsor said that DOMA had limited
New Yorkers‟ liberty to do so. And, by nationalizing
domestic relations, the Court would erode the very
federalist structure that made same-sex marriage
possible.
Democracy. Windsor supported its decision to invalidate DOMA with democracy-reinforcing ration-

 7
ales at the state level. Our Constitution establishes
local debate and consensus as the usual method for
social change. That is shown by the First Amendment (which protects debate to facilitate change),
and by Article III‟s judicial-review standards (which
leave most social questions to the people). Windsor
relied on these presumptions. It highlighted both the
debate that had occurred in New York, and the
unique force that same-sex marriage had obtained
through the community‟s democratic will. By tying
its Fifth Amendment holding to federalism concerns,
moreover, Windsor was able to avoid taking sides on
the fundamental policy debate occurring within the
States about what marriage is. These democracyreinforcing rationales would be lost if this Court now
ruled against Ohio. Such a ruling would say that the
decade-long debate in the States has been improper.
It would eliminate the possibility of (and requirement for) each community to confront this issue and
reach a consensus that respects all sides. And it
would forever place into our Constitution only one
perspective on marriage.
Animus. The objective factors found to prove improper “animus” in Windsor are absent here. This
animus doctrine holds that a “bare desire to harm” is
not a legitimate state interest. For it to apply, a law
must objectively have no explanation other than
prejudice. Two factors are relevant—whether the
government departed from traditional practice, and
whether it targeted a group for novel burdens. Windsor concluded that DOMA both departed from the
federal government‟s traditional practice of deferring
to state marriages, and targeted same-sex marriages
for unusual disadvantages spanning the U.S. Code.
Here, however, Ohio acted within its traditional au-

 8
thority when declining to recognize marriages
against its public policy. Its decision to retain marriage‟s traditional definition also did not “target” a
class. All agree that traditional marriage arose for
purposes unrelated to prejudice. And when acting to
retain that definition, Ohioans had an obvious motive—to keep democratic, in-state control of this important issue. To hold that Ohio laws were driven by
animus, by contrast, would demean millions of Ohioans by treating their deeply held beliefs about marriage as sheer bigotry, thereby isolating those citizens in a manner at odds with the animus doctrine‟s
very reason for being.
II. Traditional Fourteenth Amendment doctrines
confirm that Windsor properly left this issue to vigorous democratic debates in each state community.
Fundamental Rights. Heightened scrutiny does
not apply because there is no fundamental right to
the recognition of out-of-state same-sex marriages.
Such a right would conflict with our Nation‟s traditions in two ways. All States denied the asserted
right to same-sex marriage until recently. And a
right to “protection and recognition” falls outside the
general right to privacy within which the specific
marriage right sits. Nor has a new consensus
emerged for a new right. Even today, a majority of
States would adhere to marriage‟s traditional definition absent federal judicial mandates. And an international perspective does not change the analysis.
Suspect Classifications. Heightened scrutiny also
does not apply on the ground that Ohio‟s recognition
laws impose burdens on “discrete and insular minorities.” Petitioners mistakenly seek heightened scrutiny for sexual-orientation classifications. This Court

 9
has repeatedly rejected similar requests, and it
should stay the course. Unlike other cases that involved express discrimination on sexual-orientation
grounds, Ohio‟s void-versus-voidable recognition distinction extends to both opposite-sex and same-sex
marriages, and does not reference sexual orientation.
Nor could Petitioners show that traditional marriage
was retained to discriminate against gays and lesbians. Further, gays and lesbians can gain the attention of lawmakers now more than ever, and any discrimination against them has been on a steady decline. Alternatively, Petitioners mistakenly argue for
heightened gender-discrimination scrutiny. Ohio‟s
recognition laws treat each gender equally, and traditional marriage, unlike interracial-marriage bans,
was not designed to demean any particular sex.
Rational Bases.
That leaves the democracyenhancing rational-basis test. As the “paradigm of
judicial restraint,” the test requires only a plausible
relationship between a law and a legitimate interest.
Under this framework, Ohio rationally chose to recognize only traditional marriages after deciding to
license only those marriages. It had a sovereign interest in ensuring that its political processes (not
those of other States) decide this profound issue.
Ohio citizens also had an interest in ensuring that
the issue was resolved by the people, not the courts.
The recognition rule, moreover, was a reasonable response to the ease with which Ohio‟s licensing laws
could be evaded by traveling to another State. And it
keeps uniformity within state law, preventing the
State from having to change many domestic-relations
provisions based solely on another State‟s domesticrelations decisions. The failure to enact a recognition
ban also bolsters and implements the State‟s concern

 10
for caution that justified retaining only traditionalmarriage licensing in the first place.
ARGUMENT
As the Sixth Circuit held, whether the Fourteenth
Amendment requires States to license same-sex marriage “goes a long way toward answering” whether it
requires States to recognize same-sex marriages licensed elsewhere. Pet. App. 63a. Ohio concedes that
if this Court rejects all grounds for retaining marriage‟s traditional definition, States may not refuse
to recognize out-of-state same-sex marriages. But
the opposite is also true. If Ohio may constitutionally retain that traditional definition, it may constitutionally prevent this important public policy from being eroded by a quick trip to a nearby State.
Petitioners challenge this view on every level—
with claims ranging from substantive due process to
equal protection, from sexual-orientation discrimination to gender discrimination, from strict scrutiny to
irrationality. Those attacks all fail. Ohio law comports with the Fourteenth Amendment and its various rules, standards, and tiers. Before that specific
analysis, though, a bird‟s-eye view illustrates how
disruptive Petitioners‟ recognition right would be to
our constitutional democracy. That right would conflict with United States v. Windsor, 133 S. Ct. 2675
(2013), in every way that matters. Ohio thus starts
with Windsor because it best shows that this issue
belongs with communities for collaborative resolution
through vibrant democratic debate and consensus.

 11
I. WINDSOR LEAVES MARRIAGE RECOGNITION TO
FEDERALISM’S ACTIVE DEMOCRATIC PROCESSES
While Petitioners rely primarily on Windsor to
argue that Ohio must recognize out-of-state same-sex
marriages, they flip Windsor on its head. Its facts
(federal recognition) and its rationales (federalism,
democracy, and animus) compel a ruling for Ohio.
A. A Recognition Right Conflicts With The
Full Faith And Credit Clause
When interpreting the Fifth Amendment to invalidate DOMA, Windsor identified no more specific
provision governing federal marriage recognition.
Here, however, interpreting the Fourteenth Amendment to impose a freestanding marriage-recognition
right on States overlooks the Full Faith and Credit
Clause. U.S. Const. art. IV, § 1. That clause is the
“principal constitutional limit on state choice-of-law
rules.” Pet. App. 64a. While exacting with respect to
judgments, it is relaxed with respect to laws. Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494
(2003). It “does not require a State to apply another
State‟s law in violation of its own legitimate public
policy.” Nevada v. Hall, 440 U.S. 410, 422 (1979).
This “public-policy exception” applies to marriage.
“While the application of the public policy exception
has varied with courts and circumstances, state conflicts rules have always been open to refusing to recognize certain marriages and classes thereof.” Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of NonTraditional Marriages, 32 Creighton L. Rev. 147,
157-58 (1998). And the Full Faith and Credit Clause
does not make “departures from [such] established

 12
choice-of-law precedent and practice constitutionally
mandatory.” Sun Oil Co. v. Wortman, 486 U.S. 717,
729 (1988). The Sixth Circuit thus rightly recognized
that the clause permits Ohio‟s marriage-recognition
laws. Pet. App. 64a.
This has significance for whether the Fourteenth
Amendment creates a fundamental right to marriage
recognition that the Full Faith and Credit Clause
does not. The specific governs the general. If a provision “„provides an explicit textual source of constitutional protection,‟ a court must assess a plaintiff‟s
claims under that explicit provision and „not the
more generalized notion of substantive due process.‟”
Conn v. Gabbert, 526 U.S. 286, 293 (1999) (citation
omitted). So a party cannot challenge a “search”
comporting with the Fourth Amendment under a
fundamental-rights approach. See id.; cf. Medina v.
California, 505 U.S. 437, 443 (1992). And if the Free
Speech Clause condones speech regulations, a party
may not challenge them under a fundamental right
to expression. See Brandenburg v. Hous. Auth., 253
F.3d 891, 900 (6th Cir. 2001). Nor can a felon with
no Second Amendment right to a firearm, McDonald
v. City of Chicago, 561 U.S. 742, 786 (2010), fall back
on a generalized fundamental right to one, see Gardner v. Vespia, 252 F.3d 500, 503 (1st Cir. 2001).
If the Fourteenth Amendment does not create
“enhanced” criminal-procedure, speech, or firearm
rights above those granted by the Bill of Rights, it
should not create an “enhanced” recognition right
above that granted by the Full Faith and Credit
Clause. Indeed, the Court has interpreted the clause
loosely for laws because a contrary reading would
“enable one state to legislate for [another] or to pro-

 13
ject its laws across state lines” in conflict with our
Constitution‟s federalist structure. Pac. Emp’rs Ins.
Co. v. Indus. Accident Comm’n of Cal., 306 U.S. 493,
504-05 (1939). This federalism concern exists no
matter what constitutional “label” a plaintiff stamps
on the alleged recognition right.
B. A Recognition Right Conflicts With The
Constitution’s Federalist Design
Windsor interpreted the Fifth Amendment to protect federalism. Petitioners interpret the Fourteenth
Amendment to undermine it.
1. Federalism enhances liberty in the
domestic-relations context
a. By “split[ting] the atom of sovereignty” between the federal government and the States, “the
Founders established two orders of government, each
with its own direct relationship, its own privity, its
own set of mutual rights and obligations to the people who sustain it and are governed by it.” Alden v.
Maine, 527 U.S. 706, 751 (1999) (internal quotation
marks and citation omitted). They did this not as
“an end in itself,” but to “„secure[] to citizens the liberties that derive from the diffusion of sovereign
power.‟” New York v. United States, 505 U.S. 144,
181 (1992) (citation omitted). Federalism fosters two
distinct liberties.
The first is political liberty—the idea that the
people retain authority to govern themselves. Bond
v. United States, 131 S. Ct. 2355, 2364 (2011). Federalism enhances this freedom by increasing each citizen‟s ability to have a say on the issues of the day.
It “assures a decentralized government that will be
more sensitive to the diverse needs of a heterogene-

 14
ous society,” “increases opportunity for citizen involvement in democratic processes,” and “allows for
more innovation and experimentation in government.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
The second is personal liberty—“the idea of freedom from intrusive governmental acts.” Clinton v.
City of New York, 524 U.S. 417, 450 (1998) (Kennedy,
J., concurring). Federalism enhances this freedom
because “a healthy balance of power between the
States and the Federal Government will reduce the
risk of tyranny and abuse from either front.” Gregory, 501 U.S. at 458. In this way, federalism and the
Fourteenth Amendment serve complementary goals;
both “ensur[e] that laws enacted in excess of delegated governmental power cannot direct or control [individual] actions.” Bond, 131 S. Ct. at 2364.
Indeed, federalism can support liberty interests
more than the Fourteenth Amendment by allowing
smaller communities to promote those interests
above the amendment‟s floor. See Missouri, K. & T.
Ry. Co. of Tex. v. May, 194 U.S. 267, 270 (1904). In
this regard, the Fourteenth Amendment prevents only government interference with those interests that
this Court has found constitutionally protected, Lawrence v. Texas, 539 U.S. 558, 567 (2003); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846
(1992); it has never compelled government protection
or endorsement of the interest, DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96
(1989). Federalism, by contrast, allows communities
to offer that promotion in the face of a conflicting national consensus. When, for example, this Court held
that the Fourteenth Amendment does not compel
States to subsidize abortion, it added that they may

 15
choose to do so if their communities desire. Maher v.
Roe, 432 U.S. 464, 479-80 (1977). Similarly, when
the Court held that the First Amendment does not
require religious exemptions from general laws, it
added that States may grant those religious accommodations. Emp’t Div., Dep’t of Human Res. of Ore.
v. Smith, 494 U.S. 872, 890 (1990).
b. Domestic relations—a “most important aspect
of our federalism,” Williams v. North Carolina, 325
U.S. 226, 233 (1945)—has always been within the
“virtually exclusive province of the States.” Sosna v.
Iowa, 419 U.S. 393, 404 (1975). This federalism
brings variety. Danforth v. Minnesota, 552 U.S. 264,
280 (2008). A common-law marriage might be recognized in New Jersey, but not Maryland. Travers v.
Reinhardt, 205 U.S. 423, 440 (1907). A first-cousin
marriage might be recognized in New Mexico, but
not Arizona. In re Mortenson’s Estate, 316 P.2d 1106,
1106-07 (Ariz. 1957). “In a country like ours where
each state has the constitutional power to translate
into law its own notions of policy concerning the family institution, and where citizens pass freely from
one state to another, tangled marital situations . . .
inevitably arise.” Williams v. North Carolina, 317
U.S. 287, 304 (1942) (Frankfurter, J., concurring).
Over time, therefore, some have proposed constitutional amendments on the ground that “modern
social life is such that there is today a need . . . for
vesting national authority over marriage and divorce
in Congress.” Id. at 305; Marriage and Divorce—
Amendments of the Constitution of the United States:
Hearing on S.J. Res. 31 Before a Subcomm. of the
Comm. on the Judiciary, 67th Cong. (1921);
2 Herman Vandenburg Ames, The Proposed Amend-

 16
ments to the Constitution of the United States During
the First Century of Its History 190 (U.S. Government Printing Office 1897). None succeeded. Federalism has enhanced worth and importance for areas,
like domestic relations, about which “people of good
faith care deeply” and often disagree. Pet. App. 42a;
Maynard v. Hill, 125 U.S. 190, 205 (1888).
2. Windsor promoted federalism, but a
recognition right would erode it
a. Windsor described in detail the States‟ traditional marriage authority. 133 S. Ct. at 2691-92. To
be sure, Petitioners correctly note (Pet‟rs Br. 30) that
Windsor did not rest on the structural-constitutional
ground that DOMA “disrupts the federal balance.”
Id. at 2692. But its pages of federalism were not irrelevant musings. Petitioners overlook Windsor‟s ultimate holding that “[t]he State‟s power in defining
the marital relation is of central relevance in this
case quite apart from principles of federalism.” Id.
In other words, what Windsor described as the federal government‟s novel interference with traditional
state power played the central role in its ultimate
conclusion that DOMA was motivated by animus in
violation of the Fifth Amendment.
This was nothing new. The Court often interprets
constitutional provisions in a manner designed to
preserve federalism and state power. It interpreted
the Necessary and Proper Clause not to allow Congress to commandeer state officials, citing the “principle of state sovereignty” as the reason. Printz v.
United States, 521 U.S. 898, 923-24 (1997). It interpreted the Spending Clause to prohibit federal financial coercion of States so as not to undermine their
status as “independent sovereigns.” Nat’l Fed’n of

 17
Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012)
(Roberts, C.J., op.). And it understood the Commerce
Clause as prohibiting federal authority over “family
law” despite “the aggregate effect of marriage, divorce, and childrearing on the national economy.”
United States v. Morrison, 529 U.S. 598, 615-16
(2000).
By extending this federalism canon to the Fifth
Amendment, Windsor sought to promote both political and personal liberty. As for political liberty,
Windsor noted that New York chose same-sex marriage, but DOMA largely invalidated its choice by
creating “two contradictory marriage regimes within
the same State.” 133 S. Ct. at 2694. As for personal
liberty, New York opted to go further than the Fourteenth Amendment compels. New York did not simply avoid interference with relationships, Lawrence,
539 U.S. at 567; it meant to affirmatively foster the
relationships with “recognition and protection,”
Windsor, 133 S. Ct. at 2695 (emphases added).
Windsor thus sought to insulate from “a remote central power” New York‟s ability to grant what its citizens view as each person‟s proper privileges within
the State. Bond, 131 S. Ct. at 2364.
b. These rationales support Ohio. Historically,
risks to federalism have not originated solely with
Congress (as with the Court‟s concern about DOMA).
After all, Justice Brandeis wrote in dissent when he
noted that a State may “serve as a laboratory”
“try[ing] novel social and economic experiments
without risk to the rest of the country.” New State
Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). Since that era of Lochner

 18
v. New York, 198 U.S. 45 (1905), the Court has been
far more receptive to his federalism concerns.
The Court‟s present “practice, rooted in federalism,” allows “States wide discretion, subject to the
minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy.” Smith v. Robbins, 528 U.S. 259, 273
(2000). “„[T]he maintenance of the principles of federalism is a foremost consideration in interpreting
any of the pertinent constitutional provisions under
which this Court examines state action.‟” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44
(1973) (citation omitted). This is evident in many areas, from education, id., to criminal justice, District
Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52, 73-74 (2009), to life-and-death matters,
Washington v. Glucksberg, 521 U.S. 702, 735 (1997),
to even today‟s domestic-relations context, Sosna,
419 U.S. at 406-09.
Accordingly, the federalism canon that justified
skeptical Fifth Amendment review over federal marriage laws compels lenient Fourteenth Amendment
review over state marriage laws. Pet. App. 57a-58a.
The federal government disrupts “state sovereign
choices” by “„put[ting] a thumb on the scales and influenc[ing] a state‟s decision as to how to shape its
own marriage laws‟”—whether it does so through a
law by its legislature, Windsor, 133 S. Ct. at 2693 (citation omitted), a brief by its executive, U.S. Br. 2, or
a judgment by its courts. Indeed, a recognition right
forcing Ohio to follow laws passed by other States
would favor those States‟ citizens over Ohio‟s, suggesting that the States are not truly “„equal sover-

 19
eign[s]‟” in this country. Shelby Cnty. v. Holder, 133
S. Ct. 2612, 2623 (2013) (citation omitted).
If anything, judicial intervention would be more
disruptive than the congressional intervention in
Windsor. It triggers Congress‟s ability to directly
regulate States under Section 5 of the Fourteenth
Amendment. City of Boerne v. Flores, 521 U.S. 507,
517-18 (1997). A holding that marriage‟s longstanding definition—the very “foundation” of state domestic relations, Windsor, 133 S. Ct. at 2691—has been
infringing the Fourteenth Amendment could create
theories for expansive federal domestic-relations
laws indeed. Cf. NASA v. Nelson, 562 U.S. 134, 163
n.* (2011) (Scalia, J., concurring in judgment). The
Court should not permit Congress to do directly (regulate domestic-relations laws) what it criticized Congress less than two years ago for doing indirectly (incentivizing domestic-relations laws).
Harming federalism also restricts liberty. As for
political liberty, it no less intrudes on the freedom of
Ohioans for the Court to take this issue from Ohio
than it limited the freedom of New Yorkers for Congress to take it from New York. Either way, the result removes traditional power from local communities and places it in the federal government‟s farremoved, yet ever-growing orbit. That federalism‟s
dispersed power (like the separation of powers) “produces conflicts, confusion, and discordance at times is
inherent, but it was deliberately so structured to assure full, vigorous, and open debate on the great issues affecting the people.” Bowsher v. Synar, 478
U.S. 714, 722 (1986). Differing marriage laws have
always led to conflicts of laws, but federalism justifies that result in liberty‟s name over the long haul.

 20
“The Constitution‟s structure requires a stability
which transcends the convenience of the moment.”
Clinton, 524 U.S. at 449 (Kennedy, J., concurring).
As for personal liberty, Petitioners do not rely on
a traditional interest against government interference with private conduct as in Lawrence and Casey.
They seek a new liberty interest to government “protection and recognition” of another State‟s policy
choices about marriage. Pet‟rs Br. 33 (emphases
added). Outside narrow areas such as racial discrimination “directly subversive of the principle of equality at the heart” of the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1, 12 (1967), that type of
positive right to government assistance is foreign to
that amendment, DeShaney, 489 U.S. at 195-96 (due
process); Dandridge v. Williams, 397 U.S. 471, 48687 (1970) (equal protection).
But that right has always been within federalism‟s design to foster. This case proves the point.
Only because each community makes its own choice
could some States, acting as laboratories, adopt novel
same-sex-marriage laws—potentially leading to
broader social acceptance. If, instead, the Constitution mandated a national approach, no same-sex
marriages would have existed a decade ago. And
none would likely exist today given, for example, that
a majority of States would still retain traditional
marriage absent judicial interference. Pet. App.
59a. In this respect, Australian practice shows federalism‟s concrete effects. There, marriage is a national matter. So the High Court invalidated local
same-sex-marriage laws conflicting with the national
regime. Commonwealth of Australia v. Australian
Capital Territory, [2013] HCA 55 ¶ 1 (H.C. Austl.

 21
Dec. 12, 2013). By seeking to eradicate the very federalist structure that permitted same-sex marriage,
Petitioners undermine its liberty protections for all.
These federalism dynamics must not be treated as
inconvenient relics of yesteryear now that some
States permit same-sex marriage.
C. A Recognition Right Conflicts With The
Constitutional Commitment To Democracy And The First Amendment As The
Means For Social Change
Windsor, by its terms, sought to stop a distant
government from disrupting a smaller community‟s
democracy. Petitioners seek to compel just that.
1. The Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates
Each State‟s people, through representatives or
referenda, retain authority to decide most policy
questions. That is the “underlying premise[] of a responsible, functioning democracy.” Schuette v. Coal.
to Defend Affirmative Action, 134 S. Ct. 1623, 1637
(2014) (plurality op.). The Constitution entrusts the
people initially “with the responsibility for judging
and evaluating the relative merits of conflicting arguments.” First Nat’l Bank of Boston v. Bellotti, 435
U.S. 765, 791 (1978). It then “foresees the ballot box,
not the courts, as the normal instrument for resolving differences.” Schuette, 134 S. Ct. at 1649 (Breyer,
J., concurring in judgment).
This procedure for social change is not limited to
mundane matters. The Constitution “does not presume that some subjects are either too divisive or too
profound for public debate.” Id. at 1638 (plurality

 22
op.). Democracy is often “„the appropriate forum‟” for
“„policy choices as sensitive as those implicat[ing]‟”
constitutional rights. Harris v. McRae, 448 U.S. 297,
326 (1980) (citation omitted). It can resolve delicate
questions touching on such things as abortion, id., or
religion, Smith, 494 U.S. at 890. Two constitutional
provisions reinforce these democratic norms in interrelated ways.
First Amendment. The First Amendment highlights the people‟s central role in social change. The
“right of citizens to inquire, to hear, to speak, and to
use information to reach consensus is a precondition
to enlightened self-government and a necessary
means to protect it.” Citizens United v. FEC, 558
U.S. 310, 339 (2010). This “„unfettered interchange
of ideas‟”—not a government decree about the public
good—generates the “„political and social changes desired by the people.‟” Lane v. Franks, 134 S. Ct.
2369, 2377 (2014) (citation omitted). The First
Amendment thus protects expression not only for its
intrinsic value, but also to reinforce the Constitution‟s “democracy” baseline.
The First Amendment uniquely reinforces democracy in this way. Other amendments are intentionally designed to limit it. The Fourteenth Amendment,
for example, originally removed from democratic consideration any notion other than that all
“[g]overnment action that classifies individuals on
the basis of race is inherently suspect.” Schuette, 134
S. Ct. at 1634-35 (plurality op.). And when courts
interpret that amendment to extend new “constitutional protection to an asserted right or liberty interest,” Glucksberg, 521 U.S. at 720, or an asserted suspect class, City of Cleburne v. Cleburne Living Ctr.,

 23
473 U.S. 432, 441-42 (1985), they correspondingly extend the matters placed “outside the arena of public
debate and legislative action,” Glucksberg, 521 U.S.
at 720. Courts must always be cautious when doing
so because that action has “serious First Amendment
implications.” Schuette, 134 S. Ct. at 1637 (plurality
op.). It conflicts with the ideal etched into the First
Amendment “that right conclusions are more likely
to be gathered out of a multitude of tongues, than
through any kind of authoritative selection”—by a
court or otherwise. United States v. Associated Press,
52 F. Supp. 362, 372 (S.D.N.Y. 1943) (Hand, J.).
Article III. Article III‟s limits on judicial review
highlight the courts‟ limited role in social change. As
Chief Justice Marshall said when upholding democratic action, the Court “must never forget that it is a
constitution [it is] expounding.” McCulloch v. Maryland, 17 U.S. 316, 407 (1819). “Great constitutional
provisions,” like the Fourteenth Amendment, “must
be administered with caution,” Missouri, K. & T. Ry.,
194 U.S. at 270, because they are “made for people of
fundamentally differing views,” Lochner, 198 U.S. at
76 (Holmes, J., dissenting). Courts must avoid inserting into the amendment‟s capacious language a
single generation‟s answers to “the intractable economic, social, and even philosophical problems” of
the day. Dandridge, 397 U.S. at 487. Doing so prohibits all future generations from learning, from applying what they learn, and from answering those
questions in an ever evolving way.
The Court implements this principle of neutrality
in policy debates through its deferential standards of
review. When asked to recognize a new fundamental
right or suspect class that would trigger greater judi-

 24
cial scrutiny of the people, the Court exercises “„selfrestraint,‟” Reno v. Flores, 507 U.S. 292, 302 (1993)
(citation omitted), because that scrutiny is an “extraordinary protection from the majoritarian political
process” designed to resolve most disputes, Rodriguez, 411 U.S. at 28. Outside those narrow areas,
moreover, the Court has made clear that it may not
invalidate laws as “unwise, improvident, or out of
harmony with a particular school of thought.” Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483,
488 (1955). Similarly, the Court is often asked to
analyze constitutional issues that rise or fall based
on preliminary factual questions. Where reasonable
people can disagree on those uncertain facts, the
Court defers to legislative judgments. Gonzales v.
Carhart, 550 U.S. 124, 163 (2007).
2. A recognition right would thwart the
local democracies Windsor fostered
a. Windsor concluded that it was undergirding
these democratic values. To be sure, it invalidated
federal legislation. But it intentionally did so both in
deference to one State‟s democratic debate and without ending the debates in the other States.
Debate. Windsor protected the democratic dialogue preceding the New York law. New York had
engaged in a “statewide deliberative process that enabled its citizens to discuss and weigh arguments for
and against same-sex marriage.” 133 S. Ct. at 2689.
But Windsor noted that DOMA had sought to end
that debate in 1996 before it had even begun. Id. at
2682. By invalidating DOMA, therefore, Windsor
sought to give New Yorkers a real “„voice [to] shap[e]
the destiny of their own times.‟” Id. at 2692 (quoting
Bond, 131 S. Ct. at 2359).

 25
Consensus. Windsor next protected the value that
resulted from New York‟s democratic choice. It identified the unique force that New York same-sex marriages had acquired because of the community‟s democratic will. “When the State used its historic and
essential authority to define the marital relation in
this way,” the Court said, “its role and its power in
making the decision enhanced the recognition, dignity, and protection of the class in their own community.” Id. (emphases added). It is only New York‟s democracy that could create the “far-reaching legal acknowledgment” that New Yorkers “deemed” samesex relationships “worthy of dignity in the community equal with all other marriages.” Id.
Neutrality. Instead of deciding which of “two
competing views of marriage” was best, 133 S. Ct. at
2718 (Alito, J., dissenting), Windsor invalidated
DOMA in a way that avoided implanting “„a particular school of thought‟” into the Constitution, Dandridge, 397 U.S. at 484 (citation omitted). By tying
its Fifth Amendment holding to DOMA‟s novel nature, see Part I.D, the Court did not “remove the subject matter of [marriage] from political debate altogether.” Brzonkala v. Va. Polytechnic Inst. & State
Univ., 169 F.3d 820, 895 (4th Cir. 1999) (Wilkinson,
C.J., concurring), aff’d Morrison, 529 U.S. 598. It instead allocated that debate to the States. In the process, it highlighted how reasonable people could disagree over the issue. Marriage‟s traditional view,
Windsor said, “for many who long have held it, became even more urgent, more cherished” during this
debate. 133 S. Ct. at 2689. “For others, however,
came the beginnings of a new perspective, a new insight.” Id. By refraining from picking sides, Windsor

 26
allowed this state debate to continue “as it should in
a democratic society.” Glucksberg, 521 U.S. at 735.
b. Windsor‟s democracy-reinforcing rationales all
support Ohio.
Debate. Allowing each State to resolve marriage
policy continues the dialogue that Windsor protected.
Since DOMA, no issue has been more debated—from
legislative chambers to town halls—than marriage.
By 2012, 35 States had put this issue on the ballot,
some more than once. Initiative & Referendum Inst.,
Same-Sex Marriage (Sept. 2012), available at
http://www.iandrinstitute.org/BW%2020121%20Marriage.pdf. Accordingly, what Schuette said
on another issue has far greater force here: “The
Court, by [reversing] the judgment now before it, in
essence would announce a finding that the past 15
years of state public debate on this issue have been
improper.” 134 S. Ct. at 1636 (plurality op.). The
Court would announce that Ohioans lack the “voice”
that Windsor sought to give to New Yorkers. 133
S. Ct. at 2692. And it would announce that the First
Amendment could not fairly resolve this question for
our country.
Consensus. Allowing each State to resolve marriage policy generates the enhanced dignity from
community consensus that Windsor also protected.
Only through democracy could same-sex marriage
“reflect[] both [a] community’s considered perspective
on the historical roots of the institutional of marriage
and its evolving understanding of the meaning of
equality.” Id. at 2692-93 (emphases added). So if
New York‟s “role and its power” “enhanced” the
“recognition, dignity, and protection” of same-sex
marriage in the community, it follows that judicial

 27
eradication of the States‟ role—depriving all States
from ever deciding on same-sex marriage—would
prevent that same enhanced status from arriving
anywhere else. Id. at 2692. It is only in communities, not courtrooms, where “the people, gay and
straight alike, [can] become the heroes of their own
stories by meeting each other not as adversaries in a
court system but as fellow citizens seeking to resolve
a new social issue in a fair-minded way.” Pet. App.
69a; Latta v. Otter, 2015 WL 128117, at *4 n.8 (9th
Cir. Jan. 9, 2015) (O‟Scannlain, J., dissenting from
denial of rehearing en banc).
Democracy, moreover, is not a zero-sum game. It
can have a broader perspective than a case‟s discrete
facts. It is thus unsurprising that, of the dozen or so
States adopting same-sex marriage democratically,
id. at *6 & n.9, most have passed religious-liberty
protections in the process. Robin Fretwell Wilson,
Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections, 64 Case W. Res. L. Rev.
1161, Table A3 (2014). None of the courts issuing injunctions can engage in this delicate balance designed to protect the civil rights of all. By obviating
the need for democracy to do so, moreover, those injunctions risk preventing natural democratic compromises from ever occurring. Id. at 1162. Indeed,
this Court has already recognized that democracy is
better suited for resolving these types of competing
concerns than is the judiciary. Smith, 494 U.S. at
890; cf. Christian Legal Soc’y v. Martinez, 561 U.S.
661, 694 n.24 (2010).
Neutrality. Allowing each State to resolve marriage policy gives meaning to Windsor‟s refusal to
take sides on the competing views of marriage. See

 28
133 S. Ct. at 2718-20 (Alito, J., dissenting). The
Sixth Circuit recognized that neutrality is all but
impossible here because—for the States—the constitutional question turns on choosing between those
different understandings of what marriage is and
what it is designed to do. Pet. App. 33a-35a. Windsor itself suggested that different people can reasonably hold either definition of marriage. 133 S. Ct. at
2689. And Petitioners, too, imply this is an issue “on
which „[m]en and women of good conscience can disagree.‟” Pet‟rs Br. 24 (quoting Casey, 505 U.S. at 850).
To top it off, “the only thing anyone knows for sure
about the long-term impact of redefining marriage is
that they do not know.” Pet. App. 37a.
In the face of this reasonable debate and uncertainty, state legislatures, not federal courts, get to
choose. Gonzales, 550 U.S. at 163. The Fourteenth
Amendment no more encapsulates the economic philosophies of Herbert Spencer‟s “Social Statics,” Lochner, 198 U.S. at 75 (Holmes, J., dissenting), than it
encapsulates the social philosophies of John Stuart
Mill‟s “On Liberty,” but see Baskin v. Bogan, 766
F.3d 648, 669 (7th Cir. 2014). It leaves those debates—“economic or social”—to the people. Dandridge, 397 U.S. at 486. “It is dangerous and demeaning to the citizenry,” the Sixth Circuit said, “to
assume that we, and only we, can fairly understand
the arguments for and against gay marriage.” Pet.
App. 62a. The Court avoided doing so in Windsor; it
should avoid doing so here.
Petitioners mistakenly suggest that this existence
of reasonable debate justifies a holding for them, asserting that a recognition right follows from Casey‟s
admonition that the “Court‟s obligation is „to define

 29
the liberty of all,‟ not to enforce a particular „moral
code.‟” Pet‟rs Br. 24 (quoting 505 U.S. at 850). But
this idea runs both ways. Casey said the Fourteenth
Amendment prohibits States from imposing their answer to the profound moral question of abortion on
individuals. And Lawrence extended Casey by protecting same-sex relationships from State interference. 539 U.S. at 571. But Maher found that individuals have no right to impose their answer to the
profound moral question of abortion on the States,
which may “make a value judgment favoring childbirth over abortion” in their public speech, their public spending, and their public services. 432 U.S. at
474. This case—involving a similarly profound issue
whether States should “publicly solemnize” same-sex
relationships, Pet. App. 40a—is the equivalent of
Maher as Lawrence was the equivalent of Casey.
D. A Recognition Right Departs From The
Constitution’s “Animus” Doctrine
Windsor held that DOMA‟s unusual change
proved unconstitutional animus. Petitioners argue
that Ohio‟s failure to change does so.
1. The Court’s cases invalidate laws that
are objectively explainable only on
prejudice grounds
“[I]f the constitutional conception of „equal protection of the laws‟ means anything, it must at the very
least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); Romer v. Evans, 517
U.S. 620, 634 (1996). Three factors show this “animus” doctrine‟s reach.

 30
First, it “is merely an application of the usual rational-basis test: if a statute is not rationally related
to any legitimate governmental objective, it cannot
be saved from constitutional challenge by a defense
that relates it to an illegitimate governmental interest.” Lyng v. UAW, 485 U.S. 360, 370 n.8 (1988).
Different cases on the same food-stamp program
prove this point. In one, the program‟s exclusion of
households with unrelated members was invalid because no reason explained that exclusion other than
prejudice against “„hippies‟ and „hippie communes.‟”
Moreno, 413 U.S. at 534-38. In the other, the program‟s exclusion of households with striking workers
was valid because it furthered an interest in labor
neutrality distinct from prejudice against strikers.
Lyng, 485 U.S. at 371-73.
Second, animus does not turn on subjective motivations. It turns on whether a law is objectively “inexplicable by anything but animus toward the class
it affects.” Romer, 517 U.S. at 632. Judicial inquiries into legislative “motives or purposes are a hazardous matter.” United States v. O’Brien, 391 U.S.
367, 383 (1968). “What motivates one legislator to
vote for a statute is not necessarily what motivates
scores of others to enact it.” Pac. Gas & Elec. Co. v.
State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 216 (1983). And it is impossible to identify
only one purpose animating a diverse citizenry voting on a referendum.
Third, this objective inquiry evaluates two factors—tradition and targeting. If a law departs from
tradition, that change could suggest animus. Romer,
517 U.S. at 633. “„[D]iscriminations of an unusual
character especially suggest careful consideration to

 31
determine whether they‟” violate equal protection.
Id. (citation omitted). Further, if a law “singl[es]
out” a group for novel burdens, that targeting, too,
could show animus. Cleburne, 473 U.S. at 450.
Thus, Cleburne found that only animus could explain
a city‟s decision not to allow a home for the intellectually disabled where it allowed everything else. See
id. at 447-48. And Romer determined that only animus could explain a novel amendment barring only
gays and lesbians from seeking discrimination protections. See 517 U.S. at 632.
2. Windsor applied animus doctrine, but
a recognition right transforms it
a. Windsor determined that DOMA‟s exclusion of
same-sex marriages from federal law contained both
objective factors that establish animus. The Court
initially said that DOMA was an “unusual deviation”
from the federal government‟s “usual tradition of
recognizing and accepting state definitions of marriage.” 133 S. Ct. at 2693. Windsor next noted that
DOMA targeted a group—those entering same-sex
marriages—for a novel disability. In the rare circumstance where the federal government had departed from state marriage laws, it had done so on a
statute-by-statute basis. Id. at 2690. But DOMA,
Windsor found, applied “to over 1,000 federal statutes and the whole realm of federal regulations.” Id.
b. Petitioners transform Windsor: They criticize
not an unusual change, but Ohio‟s failure to change.
Yet both animus factors prove the absence of animus
from Ohio‟s decision to retain the status quo.
Tradition. States have long refused to recognize
some out-of-state marriages. They generally recog-

 32
nized a marriage if it is valid where celebrated. Restatement (Second) Conflicts of Laws § 283 (1971);
Joseph Story, Commentaries on the Conflict of Laws
§ 113, at 168 (Little, Brown, & Co. 6th ed. 1865). But
that general rule always contained an exception for
marriages violating public policy.
Borchers, 32
Creighton L. Rev. at 154-58. At the time of the Fourteenth Amendment, States would not recognize marriages “prohibited by the public law of a country from
motives of policy.” Story, Commentaries § 113a, at
168; see, e.g., Williams v. Oates, 1845 WL 1030, at *3
(N.C. 1845). That exception continued for decades.
See, e.g., In re Stull’s Estate, 39 A. 16, 17-18 (Pa.
1898).
The exception continues today. The “„[l]egislature
undoubtedly ha[s] the power to enact what marriages
shall be void,” notwithstanding “their validity in the
state where celebrated.” Cook v. Cook, 104 P.3d 857,
860 (Ariz. Ct. App. 2005) (citation and emphasis
omitted). This exception has been applied in varied
circumstances from marriages between relatives,
Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn.
1961), to common-law marriages, Laikola v. Engineered Concrete, 277 N.W.2d 653, 656-57 (Minn.
1979); Hesington v. Hesington’s Estate, 640 S.W.2d
824, 826-27 (Mo. Ct. App. 1982); to marriages by
those lacking legal capacity, Wilkins v. Zelichowski,
140 A.2d 65, 69 (N.J. 1958); Davis v. Seller, 108
N.E.2d 656, 658 (Mass. 1952).
Ohio exhibits the tradition. Before today‟s controversy, its Supreme Court had held that many
“heterosexual marriages . . . would not be recognized
in the State, even if they were valid in the jurisdiction that performed them.” Pet. App. 67a (citing

 33
Mazzolini v. Mazzolini, 155 N.E.2d 206, 208-09 (Ohio
1958)). Specifically, Ohio does not recognize any
marriages it considers void rather than voidable,
even if the parties married “in another state or country where it was lawful.” State v. Brown, 23 N.E.
747, 750 (Ohio 1890); In re Stiles Estate, 391 N.E.2d
1026, 1027 (Ohio 1979).
Targeting. Marriage‟s traditional definition does
not target same-sex marriages in an “unprecedented”
way. Romer, 517 U.S. at 633. Even Petitioners do
not assert that Ohio‟s 1803 marriage definition was
enacted to discriminate. Nor does Ohio‟s decision to
retain that definition (and to decline to follow those
States that changed it) prove targeting. As detailed
below, see Part II.C, that decision had objective purposes such as ensuring that Ohio courts would not
find a constitutional right to same-sex-marriage
recognition. Cf. Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941, 969 (Mass. 2003).
An animus finding, by contrast, belittles many
Ohioans—“real people who teach our children, create
our jobs, and defend our shores,” Pet. App. 45a—by
telling them that their views about marriage reflect a
“bare . . . desire to harm.” Moreno, 413 U.S. at 534.
That finding would add the “rancor or discord” to this
debate that the Court cautioned, in another context,
should not be interjected “at the invitation or insistence of the courts.” Schuette, 134 S. Ct. at 1635 (plurality op.). It also could undermine the religiousliberty protections in States that expanded marriage
democratically. After all, “„[p]rivate biases may be
outside the reach of the law, but the law cannot, directly or indirectly, give them effect.‟” Cleburne, 473

 34
U.S. at 448 (citation omitted). Traditional marriage
should not be treated as a “private bias.”
Another case about change confirms the lack of
animus from a failure to proceed with it. Board of
Trustees of the University of Alabama v. Garrett, 531
U.S. 356 (2001), held that Congress failed to show
that the States had unconstitutionally discriminated
against the disabled so as to justify a damages provision of the Americans with Disabilities Act. Id. at
374. There, the ADA‟s accommodation provisions
sprang from “a new awareness, a new consciousness,
a new commitment to better treatment of those disadvantaged by mental or physical impairments.” Id.
at 376 (Kennedy, J., concurring). Here, same-sex
marriages licensed by other States similarly spring
from a new view of marriage in those States. There,
the plaintiffs alleged that States had acted with animus under Cleburne by failing “to revise policies
now seen as incorrect under [the] new understanding
of proper policy.” Id. at 375. Here, Petitioners allege
that Ohio acted with animus under Windsor by failing to revise a definition now seen as incorrect under
a new understanding of marriage. But there, as
here, the “absence of state statutory correctives” (a
disability accommodation or marriage expansion)
does not prove “a constitutional violation.” Id. at
376.
c. Petitioners‟ arguments are mistaken. As to
tradition, they say, “[p]rior to 2004, Ohio followed the
firm practice of recognizing all marriages entered out
of state, even if the marriages would have been void
if performed in Ohio.” Pet‟rs Br. 4, 28-30, 36-37.
This “misapprehend[s] Ohio law, wrongly assuming
that Ohio would recognize as valid any heterosexual

 35
marriage that was valid in the State that sanctioned
it.” Pet. App. 66a. Petitioners ignore the distinction
between a voidable marriage that can be recognized,
Mazzolini, 155 N.E.2d at 209, and a void marriage
that cannot be, Stiles, 391 N.E.2d at 1027.
As to targeting, Petitioners claim that snippets
from the election campaign show the voters‟ animus.
Pet‟rs Br. 21-23. Those materials also show an important rationale: to “prohibit judges in Ohio from
anti-democratic efforts to redefine marriage.” JA170.
Regardless, “[i]t is no less unfair to paint the proponent of the measures as a monolithic group of hatemongers than it is to paint the opponents as a monolithic group trying to undo American families.” Pet.
App. 45a. Just as alleged animus cannot save laws
lacking valid grounds, Cleburne, 473 U.S. at 448, it
cannot doom laws with obvious non-animus grounds,
Lyng, 485 U.S. at 370 n.8; Garrett, 531 U.S. at 367.
In sum, marriage‟s traditional definition does not
exist out of animus against gays and lesbians. And
this Court should not isolate many ordinary Americans who still adhere to that definition by forever
branding their deepest beliefs as irrational prejudices in the eyes of their fundamental charter. “If there
is a dominant theme to the Court‟s cases in this area,
it is to end otherness, not to create new others.” Pet.
App. 45a. An “animus” finding would do just that.
II. GENERAL FOURTEENTH AMENDMENT STANDARDS
CONFIRM THAT STATES MAY DECLINE TO RECOGNIZE OUT-OF-STATE SAME-SEX MARRIAGES
Windsor‟s specific teachings about the States‟ role
and power to define marriage are confirmed by
standard Fourteenth Amendment principles, which

 36
leave same-sex-marriage recognition to each State‟s
democratic processes. To begin with, heightened
scrutiny cannot apply because no “fundamental
right” to the recognition and protection of same-sex
marriage exists. The Court has been wary about
creating such novel rights both to promote experimentation, debate, and consensus within the States,
and to preserve the next generation‟s ability to do so.
Nor does the decision to recognize only traditional
marriage discriminate along “suspect” lines. In this
context, too, the Court has hesitated to create new
suspect classifications, especially in the face of state
democracies in action. These cases would be particularly poor vehicles for suspect-classification scrutiny
because a State‟s recognition of only traditional marriage cannot be ascribed to intentional discrimination against gays and lesbians. Finally, Ohio had
many valid bases for retaining a uniform marriage
policy, including the federalism concern with protecting its sovereignty over this important question.
A. Ohio’s Recognition Laws Infringe No
Fundamental Right
Substantive due process prohibits the government
from “infring[ing] certain „fundamental‟ liberty interests” without satisfying heightened scrutiny. Reno,
507 U.S. at 302. This standard does not justify
heightened scrutiny here because Ohio‟s recognition
laws do not infringe a fundamental liberty interest.
1. A recognition right would depart from
tradition
A “fundamental” right must be “„deeply rooted in
this Nation‟s history and tradition.‟” Glucksberg, 521
U.S. at 720-21 (citation omitted). For some, this his-

 37
tory is conclusive. Heightened review cannot apply if
our Nation has a “tradition of enacting laws denying
the” alleged fundamental interest. Michael H. v.
Gerald D., 491 U.S. 110, 122 & n.2 (1989) (plurality
op.). For others, this history is an important “„starting point.‟” Lawrence, 539 U.S. at 572 (citation omitted). “If a thing has been practiced for two hundred
years by common consent, it will need a strong case
for the Fourteenth Amendment to affect it.” Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
Courts undertake this historical analysis with “a
careful description of the asserted right.” Reno, 507
U.S. at 302. History is the one objective guidepost in
an area fraught with “„scarce and open-ended‟” ones.
Osborne, 557 U.S. at 72 (citation omitted). Here,
when carefully assessed, Petitioners‟ recognition
right fails because (a) the right to marry has never
included same-sex marriage, and (b) the right to marry is a privacy right, not a right to public recognition.
a. Same-Sex Marriage. No State permitted samesex marriage until 2004. JA259. Its novelty shows
there could be no tradition compelling one State to
recognize same-sex marriages performed elsewhere
despite the longstanding public-policy exception. See
Part I.D.2. And the Court‟s right-to-marry cases
cannot fill the historical void. When referencing
“marriage,” the cases invoked its traditional definition, not a new one. Pet. App. 48a-49a.
Loving, when overturning a criminal conviction,
treated traditional marriage as the right, and the
racist anti-miscegenation law as a restriction on it.
388 U.S. at 11-12. It cited the unique relationship
between race and the Fourteenth Amendment. Id.
And those laws had always been viewed as re-

 38
strictions on, not inherent in, marriage. David R.
Upham, Interracial Marriage & the Original Understanding of the Privileges or Immunities Clause, 42
Hastings Const. L.Q. 213, 218 (2015). In the 1870s,
they were far from universal. Id. at 263. And before
this Court wrongly upheld them, Pace v. Alabama,
106 U.S. 583 (1883), courts had challenged their validity, Burns v. State, 1872 WL 895, *2 (Ala. 1872);
Upham, 42 Hastings Const. L.Q. at 265-73. Marriage‟s opposite-sex rule, by contrast, had always
“been thought of by most people as essential to the
very definition of that term.” Windsor, 133 S. Ct. at
2689. That is why Baker v. Nelson, 409 U.S. 810
(1972), found it frivolous to assert that same-sex
marriage fell within the right protected by Loving.
Zablocki v. Redhail, 434 U.S. 374 (1978), and
Turner v. Safley, 482 U.S. 78 (1987), reinforce this
view. Unlike here, the States there did not identify a
long “tradition of enacting laws denying the” right to
the challengers. Michael H., 491 U.S. at 122 n.2
(plurality op.). Wisconsin did not contest that its
criminal ban on marriage by child-support debtors
was “unprecedented.” Zablocki, 434 U.S. at 404
(Stevens, J., concurring in judgment). And Missouri
conceded that the prisoner‟s requested marriage fell
within the right, arguing only that the prison context
extinguished it. Turner, 482 U.S. at 95.
b. State Recognition. A right to government “protection and recognition” of same-sex marriage would
be equally novel. Pet‟rs Br. 33. The Fourteenth
Amendment‟s substantive component affords heightened protection “„against unwarranted government
interference‟” with a liberty interest; it has never
“„confer[red] an entitlement‟” to government protec-

 39
tion of that interest. Deshaney, 489 U.S. at 196 (citation omitted). So fundamental-rights cases “involve[]
legislation which „deprived,‟ „infringed,‟ or „interfered‟
with the free exercise of some such fundamental personal right.” Rodriguez, 411 U.S. at 38; Lyng, 477
U.S. at 638. A fundamental right is a right against
government, not a right to government.
This distinction permeates right-to-privacy cases.
Parents have a right against government interference with their children‟s private education. Pierce
v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925). But
that does not include a right to aid for the school.
Norwood v. Harrison, 413 U.S. 455, 462 (1973).
Families have a right against government interference with their living together. Moore v. City of East
Cleveland, 431 U.S. 494, 504-05 (1977) (plurality
op.). But that does not include a right to assistance
for the house. Lindsey v. Normet, 405 U.S. 56, 73-74
(1972). Couples have a right against government interference with their bearing children. Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541
(1942). But that does not include a right to have the
government feed “large families.” Dandridge, 397
U.S. at 475. And the Court has said that individuals
have a right against government interference with
access to abortion. Casey, 505 U.S. at 846. But that
does not encompass a right to promotion of that
choice. Rust v. Sullivan, 500 U.S. 173, 201-02 (1991).
This dichotomy controls here. “[T]he right to
marry is part of [this] fundamental „right of privacy.‟”
Zablocki, 434 U.S. at 384; Paul v. Davis, 424 U.S.
693, 713 (1976). Accordingly, just as similar right-toprivacy cases were not later followed by decisions
creating a right to government protection and en-

 40
dorsement, so Lawrence should not later be followed
by such a right to government protection and endorsement in the marriage context either.
A positive right to protection and recognition
would generate uncertainty. As for recognition, the
Sixth Circuit said it would cause confusion over other
relationships that the State must endorse. Pet. App.
50a-51a. As for protection, it would cause confusion
over items that must be provided. Must States indefinitely retain the marital evidentiary privilege?
Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Or the
presumption of legitimacy? Michael H., 491 U.S. at
124 (plurality op.). In sum, “something can be fundamentally important”—like a proper education, adequate shelter, sufficient food, or good health—
“without being a fundamental right.” Pet. App. 47a.
2. No new consensus shows a new right
“[N]o national consensus has yet emerged” that
could trump these traditions. Cruzan ex rel. Cruzan
v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 292 (1990)
(O‟Connor, J., concurring).
a. “[T]he „clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country‟s legislatures.‟” Graham v. Florida, 560 U.S. 48, 62 (2010) (citation omitted). The
current consensus supports Ohio. A dozen or so
States have adopted same-sex marriage legislatively.
Latta, 2015 WL 128117, at *6 & n.9 (O‟Scannlain, J.,
dissenting from denial of rehearing en banc). Over
30 would adhere to traditional marriage without intervention by federal courts. Pet. App. 59a. This
cannot show a “national consensus” for same-sex
marriage or its recognition.

 41
Fundamental-rights cases confirm this. Some 34
States permitted interracial marriage at the time of
Loving. 388 U.S. at 6 n.5. Similarly, the law invalidated in Griswold v. Connecticut, 381 U.S. 479
(1965), was an “utter novelty,” Poe v. Ullman, 367
U.S. 497, 554 (1961) (Harlan, J., dissenting). And
when Lawrence protected intimate same-sex relationships, 37 States permitted the conduct. 539 U.S.
at 573. Finally, while States prohibited abortion at
the time of Roe v. Wade, 410 U.S. 113 (1973), the
Court, whether right or wrong, “spent about a fifth of
[its] opinion negating the proposition that there was
a longstanding tradition” of such laws. Michael H.,
491 U.S. at 127 n.6 (Scalia, J., op.). Here, the current consensus cannot be overlooked by calling it “of
relatively recent vintage.” Compare Roe, 410 U.S. at
129, with Windsor, 133 S. Ct. at 2689.
Eighth Amendment cases prove the same. When
Atkins v. Virginia, 536 U.S. 304, 314-15 (2002), and
Roper v. Simmons, 543 U.S. 551, 564 (2005), found a
consensus against capital punishment for certain individuals, 30 States prohibited such punishment. By
comparison, the decisions that Roper and Atkins
overruled found no consensus since some 34 States
permitted capital punishment in one context, Penry
v. Lynaugh, 492 U.S. 302, 334 (1989), and some 25
permitted it in the other, Stanford v. Kentucky, 492
U.S. 361, 370-71 n.2 (1989). Like Penry and Stanford, and unlike Atkins and Roper, there is no legislative consensus for same-sex marriage.
b. “Measures of consensus other than legislation”
reinforce that no recognition right exists. Kennedy v.
Louisiana, 554 U.S. 407, 433 (2008). Lawrence noted
that the laws there did “not seem to have been en-

 42
forced against consenting adults,” which made “it difficult to say that society approved” of them. 539 U.S.
at 569; Kennedy, 554 U.S. at 433. Here, Petitioners
identify no State that—while it formally had a traditional-marriage law on the books (as Ohio did in
1803)—permitted same-sex marriage in practice.
Further, that many States reaffirmed traditional
marriage recently (as Ohio did in 2004) shows that
the laws cannot be viewed as resting on outdated enactments. Pet. App. 42a. If the lack of enforcement
in Lawrence supported invalidating the laws, the
universal enforcement and recent reaffirmations
support upholding them.
International views only confirm this. While
many of the 47 members of the Council of Europe allow civil unions, no more than 12 authorize same-sex
marriage or have future plans to. Hämäläinen v.
Finland, No. 37359/09 ¶ 31 (Eur. Ct. H.R. July 16,
2014). “[I]t cannot be said that there exists any European consensus on allowing same-sex marriages.”
Id. ¶ 74. Globally, fewer than 20 of the 193 U.N.
members have adopted same-sex marriage. Pew Res.
Ctr., Gay Marriage Around the World, available at
http://www.pewforum.org/2013/12/19/gay-marriagearound-the-world (last visited Mar. 24, 2015). The
consensus, moreover, favors democratic change. European same-sex marriage “has come exclusively
from legislatures, and not from the judiciary.” David
B. Oppenheimer et al., Religiosity and Same-Sex
Marriage in the United States and Europe, 32 Berkeley J. Int‟l L. 195, 201 (2014). As the European
Court of Human Rights noted, “it must not rush to
substitute its own judgment in place of that of the
national authorities.” Schalk and Kopf v. Austria,
No. 30141/04, ¶ 62 (2010). This Court considered

 43
that court‟s views of “importance” in Lawrence, and
they remain relevant here. 539 U.S. at 573.
B. Ohio’s Recognition Laws Do Not Discriminate Along Suspect Lines
Three tiers of equal-protection scrutiny apply to
statutes that offer benefits to certain individuals but
not others. Strict scrutiny governs laws that discriminate based on the suspect classifications of race,
alienage, or national origin. Cleburne, 473 U.S. at
440. Intermediate scrutiny governs laws that discriminate based on the quasi-suspect classifications
of gender and legitimacy. Id. at 440-41. Rationalbasis scrutiny governs the rest. Id. at 442. Petitioners‟ efforts to change this framework (by establishing
a new quasi-suspect classification), and their efforts
to work within it (by equating marriage with gender
discrimination) are both mistaken.
1. Ohio’s recognition laws are not subject
to heightened scrutiny based on sexual orientation
Petitioners (and the United States) ask this Court
to do something it has not done in decades: create a
new quasi-suspect classification (sexual orientation)
triggering heightened scrutiny. Pet‟rs Br. 38-48;
U.S. Br. 15-25. Yet the Court‟s precedent forecloses
the option. And it would make little sense to depart
from that precedent in these cases. Unlike Romer,
they involve neutral recognition laws whose impact
on sexual orientation was not intentionally discriminatory. Further, the ability of gays and lesbians to
participate in the political process has only increased, so the traditional rationales for applying
heightened scrutiny are less persuasive today.

 44
a. Precedent. This Court has repeatedly been
asked to apply heightened scrutiny to laws allegedly
discriminating based on sexual orientation, and it
has consistently refrained from doing so. Windsor
invalidated DOMA on animus grounds, not on the
heightened scrutiny requested by the United States.
133 S. Ct. at 2693-95. It followed the course set by
Romer, which also applied animus doctrine and not
the strict scrutiny chosen by lower courts. 517 U.S.
at 625, 634. And both cases comport with Baker,
which necessarily applied rational-basis review when
rejecting the requested heighted scrutiny “for want of
a substantial federal question.” 409 U.S. at 810.
Petitioners‟ two precedent-based arguments are
mistaken. They claim that Windsor‟s animus rationale represents heightened scrutiny under another name. Pet‟rs Br. 38. Not so. The doctrine is
“merely an application of the usual rational-basis
test.” Lyng, 485 U.S. at 370 n.8. That is why Romer
found that the law lacked “a rational relationship to
a legitimate governmental purpose,” 517 U.S. at 635,
and why Windsor spoke in terms of DOMA having
“no legitimate purpose,” 133 S. Ct. at 2696; Kelo v.
City of New London, 545 U.S. 469, 491 (2005) (Kennedy, J., concurring) (equating rational-basis test
with animus doctrine).
Petitioners next suggest that the Court should
apply the rational-basis test only to economic laws
like those “regulating packaged milk.” Pet‟rs Br. 40.
Yet Dandridge applied rational-basis review despite
“the dramatically real factual difference between”
business regulations and the welfare laws at issue
there “involv[ing] the most basic economic needs of
impoverished human beings.” 397 U.S. at 485. Since

 45
then, the Court has applied rational-basis review to
laws discriminating against the disabled, Cleburne,
473 U.S. at 442-46, the elderly, Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976), close relatives, Lyng v. Castillo, 477 U.S. 635, 638 (1986), and
the impoverished, Harris, 448 U.S. at 323. In doing
so, the Court did not demean these individuals‟ dignity; rather, it recognized that it “is not the province
of this Court to create substantive constitutional
rights in the name of guaranteeing equal protection.”
Rodriguez, 411 U.S. at 33.
b. Invidious Intent. It would make little sense to
depart from prior precedent in these cases. Romer
chose rational-basis review for an amendment that
explicitly discriminated against gays and lesbians.
517 U.S. at 624. The amendment barred all municipal anti-discrimination protections for “gays and lesbians” in particular, while permitting those protections for the majority of straight individuals. Id.
The law to that extent was facially discriminatory.
Here, however, Ohio‟s recognition framework—
distinguishing void from voidable marriages—does
not classify on sexual-orientation lines. “[A] number
of heterosexual marriages,” for example, fall on the
void side of the line. Pet. App. 67a. And, as the New
York Court of Appeals held, even the decision to
place same-sex marriages in this category applies to
all individuals no matter their orientation. Hernandez v. Robles, 855 N.E.2d 1, 20 (N.Y. 2006). It would
be odd for the Court to apply heightened scrutiny to
Ohio‟s neutral recognition framework when it refused to apply such scrutiny to Colorado‟s anti-antidiscrimination amendment.

 46
Instead, under the Fourteenth Amendment, laws
with differential impacts generally require challengers to show that the laws were passed to intentionally discriminate against the group affected. Pers.
Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979);
Washington v. Davis, 426 U.S. 229, 240 (1976); cf.
Christian Legal Soc’y, 561 U.S. at 694 n.24. Traditional-marriage laws are not intentionally discriminatory. The traditional definition “goes back thousands of years and spans almost every society in history,” but “„laws targeting same-sex couples did not
develop until the last third of the 20th century.‟”
Pet. App. 53a (quoting Lawrence, 539 U.S. at 570).
The United States responds that this intent element need not be shown because Ohio‟s recognition
framework forecloses a “class of marriages into which
only lesbian and gay people are likely to enter.” U.S.
Br. 16. But Ohio‟s framework extends beyond samesex marriage, Pet. App. 67a, and the United States‟
cases undermine its position. Windsor did not apply
heightened scrutiny. See Part I. Christian Legal Society did not even address this issue. It instead upheld state action against a First Amendment challenge, holding that a university‟s “all-comers” policy
neutrally applied to all student organizations and did
not intentionally target the religious group challenging it. 561 U.S. at 695-96. And Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263 (1993), rejected
the notion that courts may discard the usual intent
element even when a law has an exclusive impact on
a class. Id. at 271-72. While laws disfavoring abortion apply as to women only, challengers must still
show an intent to discriminate along gender lines to
prove a constitutional violation. Id. Just as one can
oppose abortion for reasons “other than hatred of, or

 47
condescension toward . . . women,” id. at 270, one can
support traditional marriage for reasons other than
prejudice toward gays and lesbians, Lawrence, 539
U.S. at 585 (O‟Connor, J., concurring).
c. Democracy Defect. It would also make little
sense to depart from prior precedent today. Baker
was decided in 1972; Romer in 1996. If the theory for
new quasi-suspect classes did not justify heightened
scrutiny in those cases, it cannot justify it now. As a
famous footnote says, that theory rests on the notion
that “prejudice against [a] discrete and insular minorit[y]” has “seriously . . . curtail[ed] the operation
of those political processes ordinarily to be relied upon to protect minorities.” United States v. Carolene
Prods. Co., 304 U.S. 144, 152 n.4 (1938). Yet any
“changed circumstances” between Baker, Romer,
Windsor, and today‟s cases show more—not less—
reason to trust democracy to resolve these issues.
Casey, 505 U.S. at 864 (joint op.).
To begin with, protected-class status is reserved
for those “relegated to such a position of political
powerlessness,” Rodriguez, 411 U.S. at 28, as to have
“no ability to attract the attention of the lawmakers,”
Cleburne, 473 U.S. at 445. Even “the most modest
powers of observation,” the Sixth Circuit noted, show
that political invisibility is not an issue today. Pet.
App. 56a. As these appeals illustrate, gays and lesbians have “attract[ed] the attention of the lawmakers” at every level of government. At the federal level, the executive branch filed an amicus brief, as did
some 167 Representatives and 44 Senators. Not only
that, with respect to DOMA, the executive branch‟s
strong support led it to the “unusual position” of failing “to defend the constitutionality of an Act of Con-

 48
gress based on a constitutional theory not yet established in judicial decisions” and that was rejected by
four Justices. Windsor, 133 S. Ct. at 2687-88. At the
state level, 19 States filed four amicus briefs in these
cases challenging the laws of their sister sovereigns.
Further, several state officers have, like the federal
government, “refused to defend” their own laws. Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013). At
the local level, some 226 Mayors and many of the
largest cities expressed support.
On the specific issue before the Court, moreover,
a dozen or so States have already passed legislation
expanding marriage democratically. Latta, 2015 WL
128117, at *6 & n.9 (O‟Scannlain, J., dissenting from
denial of rehearing en banc). And statistical work
buttresses the “widely held assumption” expressed
by the Sixth Circuit, Pet. App. 57a, that same-sex
marriage seems to be “„virtually unique among all
major public policy issues‟” in its ongoing ability to
attract increasing support. Wilson, 64 Case W. Res.
L. Rev. at 1201 (quoting Nate Silver, How Opinion on
Same-Sex Marriage is Changing, and What it Means,
N.Y. Times (Mar. 26, 2013)).
In addition, while there is no question that “gay
individuals have experienced prejudice in this country,” Pet. App. 52a, here too the facts have changed
for the better for Petitioners‟ cause. “As of 2015,” for
example, “eighty-nine percent of Fortune 500 companies provide non-discrimination protection for their
LGBT employees, and sixty-six percent offer benefits
to same-sex partners.” Amicus Br. of 379 Emp‟rs and
Orgs. Representing Emp‟rs at 20. And, as the Court
has already held, “there is no longstanding history in
this country of laws directed at homosexual conduct

 49
as a distinct matter.” Lawrence, 539 U.S. at 568.
This, for example, is not an area like race or gender
“in which the local, state, and federal governments
historically disenfranchised the suspect class.” Pet.
App. 56a; cf. Cleburne, 473 U.S. at 461-64 (Marshall,
J., concurring in the judgment in part and dissenting
in part).
Finally, as the Sixth Circuit noted, gays and lesbians are far less insulated today as more and more
individuals have “been forced to think about the matter through the lens of a gay friend or family member.” Pet. App. 57a. Most of the population knows
individuals who are “openly gay.” Id.; JA216.
At day‟s end, the Court has been “very reluctant”
to establish new suspect classes given “our federal
system and . . . [its] respect for the separation of
powers.” Cleburne, 473 U.S. at 441. That scrutiny
constitutes an “extraordinary protection from the
majoritarian political process” through which most
questions are resolved. Rodriguez, 411 U.S. at 28. It
should not be undertaken now. If anything, it is litigation that has stalled democracy. Those who would
have proceeded politically in some States “have opted
to take a wait-and-see approach . . . as federal litigation proceeds.” Pet. App. 43a. Ohio same-sexmarriage supporters, for example, remain in the process of placing a repeal on the ballot. Ohio Ballot
Board, Pending Statewide Ballot Issues, available at
http://www.sos.state.oh.us/SOS/LegnAndBallotIssues
/BallotBoard.aspx (last visited Mar. 24, 2014).

 50
2. Ohio’s recognition laws do not discriminate against any gender
Petitioners spend little space discussing the oftrejected claim that Ohio‟s recognition laws trigger
heightened gender-discrimination scrutiny. Pet‟rs
Br. 48-49. Those laws treat both genders equally;
they do not favor one over the other. For such a neutral law, a challenger generally must prove that the
State enacted the law with discriminatory intent toward one gender. Feeney, 442 U.S. at 274. Petitioners have never made that showing. See Conaway v.
Deane, 932 A.2d 571, 599-600 (Md. 2007); Hernandez, 855 N.E.2d at 20.
Petitioners instead argue that even laws that
“give no preference to women or men” are subject to
heightened scrutiny if they expressly reference the
sexes. Pet‟rs Br. 48. No case supports that claim.
United States v. Virginia, 518 U.S. 515 (1996), which
involved unequal treatment of women, recognized
that the Court‟s gender-discrimination cases applied
“skeptical scrutiny of official action denying rights or
opportunities based on sex.” Id. at 531. And all of
the Court‟s other “landmark decisions” in this area
invalidated “statutes that differentiated between
men and women as discrete classes for the purposes
of unequal treatment.” Conaway, 932 A.2d at 595
n.25 (citing cases). Traditional marriage does no
such thing. “Mechanistic classification of all our differences as stereotypes would operate to obscure
those misconceptions and prejudices that are real.”
Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 73 (2001).
Finally, one of Petitioners‟ authorities unfairly
equates traditional marriage with racist antimiscegenation laws. Latta v. Otter, 771 F.3d 456,

 51
482-83 (9th Cir. 2014) (Berzon, J., concurring). But
those interracial-marriage bans had a discriminatory
purpose “to maintain White Supremacy.” Loving,
388 U.S. at 11. And “„racial classifications receive
close scrutiny even when they may be said to burden
or benefit the races equally.‟” Johnson v. California,
543 U.S. 499, 506 (2005) (citation omitted). The
Court has, by contrast, never “equat[ed] gender classifications, for all purposes, to classifications based
on race.” Virginia, 518 U.S. at 532; cf. Parham v.
Hughes, 441 U.S. 347, 355 (1979) (plurality op.).
C. Ohio’s Recognition Laws Rationally Promote Important State Interests
Ohio rationally chose to recognize only traditional
marriages after deciding to license only those marriages. Again, Ohio concedes that if it must license
same-sex marriages, it cannot refuse to recognize
them. But these cases ask whether Ohio may constitutionally choose its valid marriage definition over
another State‟s expanded one. It may. The very way
Petitioners frame their arguments proves this. They
largely (and quite wrongly) challenge reasons for
traditional-marriage licensing while ignoring the
grounds for recognition identified by the Sixth Circuit. Pet‟rs Br. 50-60. Equally revealing, the United
States departs from Petitioners by relying solely on
heightened scrutiny, recognizing that Petitioners‟
“rigorous” rational-basis arguments would endanger
much of the U.S. Code. U.S. Br. 25-31.
1. As the “paradigm of judicial restraint,” F.C.C.
v. Beach Commc’n, Inc., 508 U.S. 307, 314 (1993), the
rational-basis test implements the Constitution‟s
preference for democracy. It prohibits this Court
from “sit[ting] as a superlegislature to judge the wis-

 52
dom or desirability of legislative policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines.” Heller v.
Doe, 509 U.S. 312, 319 (1993). Instead, the test asks
only if a plausible relationship exists between the
law and a “„legitimate governmental purpose.‟” Garrett, 531 U.S. at 367 (citation omitted). It brings a
“strong presumption of validity,” Heller, 509 U.S. at
319, placing the burden “„on the one attacking the
legislative arrangement to negative every conceivable basis which might support it,‟” id. at 320 (citation
omitted).
Specific principles show just how much the test
reinforces democracy. It matters not if the reasons
offered in court are the reasons why lawmakers (or
voters) approved the law. U.S. R.R. Retirement Bd.
v. Fritz, 449 U.S. 166, 179 (1980). The basis may be
“rational speculation unsupported by evidence or
empirical data.” Beach, 508 U.S. at 315. Further,
“„reform may take one step at a time, addressing itself to the phase of the problem which seems most
acute to the legislative mind.‟” Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (citation omitted);
Johnson v. Robison, 415 U.S. 361, 378 (1974). So the
test permits “imperfect” line-drawing that is “both
underinclusive and overinclusive” to the interests
advanced. Vance v. Bradley, 440 U.S. 93, 108 (1979).
Rough approximations suffice; “mathematical nicety”
is never required. Dandridge, 397 U.S. at 485.
2. Ohio had important grounds for declining to
recognize out-of-state same-sex marriages once it decided not to license those marriages.
In-State Control. Ohio had a rational—indeed, a
sovereign—interest in wanting its political processes

 53
(not those of other States) to decide this issue within
its borders. As one legislator noted, “[t]here‟s no
judge in Massachusetts who is accountable to one
person who lives in this state, but we all are. And
that‟s why it is important that we retain the policy,
power in Ohio to decide on what is marriage.” Obergefell Doc.41-6, Becker Decl. Ex. E, PageID#351
(Rep. Grendell). Ohio did not “behave irrationally by
insisting upon its own definition of marriage rather
than deferring to the definition adopted by another
State.” Pet. App. 64a.
To find this concern for in-state control unconstitutional, the Court would have to set aside a century‟s worth of precedent. “A basic principle of federalism is that each State may make its own reasoned
judgment” about matters “within its borders.” State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
422 (2003); House v. Mayes, 219 U.S. 270, 282 (1911)
(state may “regulate the relative rights and duties of
all within its jurisdiction”). As one example, a State
may exercise “jurisdiction over nonresidents who are
physically present in the State” no matter how temporarily. Burnham v. Superior Ct. of Cal., 495 U.S.
604, 610 (1990) (plurality op.). As a second example,
“[a] State‟s interest in vindicating its sovereign authority through enforcement of its laws by definition
can never be satisfied by another State‟s enforcement
of its own laws.” Heath v. Alabama, 474 U.S. 82, 93
(1985). The public-policy exception provides a third,
resting on the view that a State can pick its laws
over another State‟s. See The Kensington, 183 U.S.
263, 269 (1902); Knott v. Botany Worsted Mills, 179
U.S. 69, 71 (1900). This exception and these cases
would make no sense if the Constitution dictated an
out-of-state choice. Pet. App. 65a. Ohio‟s decision to

 54
prefer its laws over out-of-state laws fits squarely
within this framework.
Conversely, a State‟s sovereign authority is generally limited to its territory. “Laws have no force of
themselves beyond the jurisdiction of the state which
enacts them, and can have extra-territorial effect only by the comity of other states.” Huntington v. Attrill, 146 U.S. 657, 669 (1892). That is true even
when the State‟s citizens travel outside the State. “A
State does not acquire power or supervision over the
internal affairs of another State merely because the
welfare and health of its own citizens may be affected
when they travel to that State.” Bigelow v. Virginia,
421 U.S. 809, 824 (1975). Thus, Petitioners‟ suggestion that out-of-state laws should take precedence
over Ohio‟s “democratic processes” has it backwards.
Pet‟rs Br. 52. In any other context, such a suggestion
would be treated not just as a misguided view, but as
a potentially unconstitutional one.
Democratic Preservation. Ohio‟s concern with instate control was magnified by the method in which
other States had been adopting same-sex marriage.
Ohio‟s legislatures and citizens rationally feared that
the State would surrender this important choice to
either in-state or out-of-state courts. The recognition
provisions in Ohio‟s statutes and constitution were
rational responses to this democracy concern.
As for Ohio‟s statutes, legislators were “not willing to leave it to courts to define what Ohio‟s public
policy might be,” Obergefell Doc.41-6, Becker Decl.
Ex. E, PageID#340 (Rep. Seitz), and believed that
“the people of Ohio deserve to have their representatives decide the public policy of this state.” Id. PageID#351 (Rep. Grendell). These concerns were well-

 55
founded. In jurisdictions where legislatures did
nothing, courts found that out-of-state same-sex
marriages were valid precisely because the legislatures had done nothing. See Port v. Cowan, 44 A.3d
970, 977-82 (Md. 2012); Christiansen v. Christiansen,
253 P.3d 153, 156-57 (Wyo. 2011). And the Ohio Supreme Court had already suggested that it might
recognize a marriage unless the legislature considered it “void.” Mazzolini, 155 N.E.2d at 209.
As for Ohio‟s Constitution, the amendment was
the only way for Ohio voters to ensure that their
state courts would not declare a right to same-sexmarriage recognition, similar to what other courts
had already done. See Goodridge, 798 N.E.2d at 969.
Petitioners cannot identify any way in which Ohioans could protect their democratic choices against
such a possibility without amending the constitution.
Nor is there anything nefarious with doing so. “A
State is entitled to order the processes of its own
governance, assigning to the political branches, rather than the courts, the responsibility for” deciding
such an important issue. Alden, 527 U.S. at 752.
Evasion. The recognition rule “discourages evasion of the State‟s marriage laws by allowing individuals to go to another State, marry there, then return home.” Pet. App. 65a. That concern has a long
pedigree. Restatement (First) of Conflict of Laws
§ 132 cmt. e (1934); 1 Francis Wharton, A Treatise on
the Conflict of Laws § 181 (1905). Such marriages do
not invoke comity concerns with other States because
the parties never “„acqui[re] . . . domicile‟” in those
States. In re Stull’s Estate, 39 A. at 20 (citation
omitted). And even the demanding full-faith-andcredit rules applicable to divorce judgments do not

 56
require a State to recognize out-of-state divorces if
“cogent evidence” suggests the divorcees were the
State‟s citizens. Sosna, 419 U.S. at 407-08.
This concern has only grown stronger in the modern age of easy travel. Ohio‟s licensing law would
mean little if Ohioans could travel on vacation, get
married, and then return home with the marriage
due full recognition in the State. Today‟s Ohio cases
show that this concern is real; many of the same-sex
couples in those cases traveled from their home State
to another to get married. See, e.g., JA25 (Maryland); JA394 (New York). If anything, to recognize
out-of-state same-sex marriages while not licensing
such marriages in the State could itself be deemed
irrational. It would end up prohibiting same-sex
marriage only for those citizens who lack the means
to travel. Ohioans could rationally think that marriage status should not be decided in this fashion.
Cf. Boddie v. Connecticut, 401 U.S. 371, 374 (1971).
Further, it was rational to have a bright-line rule
that encompasses all same-sex marriages, including
those who marry in their home State and then move
to Ohio. Rational-basis review permits general approximations. Pet. App. 39a (discussing Murgia, 427
U.S. 307). And a bright-line rule (rather than a marriage-by-marriage approach) eliminates the administrative difficulties of distinguishing between the two
types of marriages in each case. Armour v. City of
Indianapolis, 132 S. Ct. 2073, 2080 (2012).
Uniformity. Ohio‟s recognition decision also follows from administrative concerns after it decided to
retain traditional-marriage licensing. Id. A recognition decision would require more than a narrow onetime “accommodation.” Because marriage is the

 57
“foundation of the State‟s broader authority to regulate the subject of domestic relations,” Windsor, 133
S. Ct. at 2691, it implicates many legal areas such as
family, tax, property, evidence, and tort law.
Unlike with, say, first-cousin marriages, Mazzolini, 155 N.E.2d at 209, Ohio would need to assess
many provisions framed in gender-specific language
to determine how to reconcile its laws with same-sex
marriage. See, e.g., Ohio Rev. Code §§ 3705.09(F)
(child‟s mother designates surname); 3111.03 (presumption of husband‟s paternity and natural fatherhood); 3107.0611 (notice of possible adoption designates putative father and birth mother); 3111.97
(parentage rules for embryo donation); 5121.21(E)
(recovery for certain expenses); 5747.08(E) (joint tax
returns). Also unlike with those rarer marriages,
moreover, same-sex-marriage recognition could involve thousands of couples within the State. Gary
Gates, Same-Sex Couples in Ohio, April 2014, available
at
http://williamsinstitute.law.ucla.edu/wpcontent/uploads/OH-same-sex-couples-demo-apr2014.pdf.
Stability. Lastly, the rationales for traditionalmarriage licensing extend to recognition as well. To
give the most obvious example, “a State might wish
to wait and see before changing a norm that our society (like all others) has accepted for centuries.” Pet.
App. 36a. But this cautious approach would have
been incoherent unless the State retained the status
quo for all individuals inside the State, including
those who married outside of it.
Petitioners‟ contrary argument—that a State
must rationally accept all marriages once another
State decides to license those marriages, Pet‟rs Br.

 58
53—would destroy the federalist structure that protects liberty. Part I.B. Under that view, the Constitution would instantly export any State‟s novel creation of same-sex marriage (or any other) to all other
49 States. One State—indeed, one State‟s judiciary—would govern the Nation‟s domestic relations.
This conflicts with first principles. It makes no sense
to allow States to be laboratories of democracy “without risk to the rest of the country” if the other States
are not allowed to wait and see whether the sister
State‟s novel changes work. New State Ice, 285 U.S.
at 311 (Brandeis, J., dissenting).
* * * *
In the end, whatever specific standards the Court
chooses, it should hold that the Fourteenth Amendment allows States to decline recognition of same-sex
marriage.
“Any test the Court adopts must
acknowledge a practice that was accepted by the
Framers and has withstood the critical scrutiny of
time and political change.” Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014). This is true for
marriage on two levels. The specific practice of traditional marriage is deeply rooted. Windsor, 133 S. Ct.
at 2689. More than that, Windsor illustrates that
the traditional methods for departing from that traditional practice—federalism and democracy—are
also deeply rooted. Id. at 2691-92. During the past
decade, those methods have worked in “settl[ing] the
issue in a productive way.” Pet. App. 69a. The Court
should continue to let those processes do their work.
If it rightly upholds the States‟ power to be selfgoverning democracies in the licensing context, it
should not undercut that ruling by ordering its reversal in all but name through anti-democratic
means in the recognition context.

 59
CONCLUSION
The Court should affirm the Sixth Circuit‟s judgment.
Respectfully submitted,
MICHAEL DEWINE
Attorney General of Ohio
ERIC E. MURPHY*
State Solicitor
*Counsel of Record
STEPHEN P. CARNEY
PETER T. REED
Deputy Solicitors
30 East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
eric.murphy@
ohioattorneygeneral.gov
Counsel for Respondent
MARCH 27, 2015