The lesbian attorney who litigated successfully against the Defense of Marriage Act struck back Thursday against parties in an Ohio marriage case — both the American Civil Liberties Union and the state itself — over their attempts to block her from joining the lawsuit.
In a 17-page filing before the U.S. Sixth Circuit Court of Appeals, Roberta Kaplan, an attorney at the New York-based Paul, Weiss, Rifkind, Wharton & Garrison LLP, maintains arguments presented by Ohio Attorney General Mike DeWine and attorneys representing the plaintiffs — the ACLU and the private law firm Gerhardstein & Branch — are unfounded.
The brief filed by Kaplan — an Ohio native who’s representing Equality Ohio and four same-sex couples in the state — rejects the notion that her motion to intervene was filed at too late a stage in the process of the litigation and that her filing presents new issues on marriage the court has yet to address.
“At best, Plaintiffs-Appellees and Defendant-Appellant offer the kind of vague, unspecified assertions of potential prejudice and delay that have properly been rejected by courts in other cases,” Kaplan writes. “But there will be no delay since the Proposed Intervenors have already complied with the schedule set by the Court, and no one has suggested that they will not continue to do so.”
Kaplan writes neither the ACLU nor the state articulates what she believes is “the likely true motivation behind their opposition” to her intervention in the case: an objection to her participating in oral arguments.
The lawsuit, Obergefell v. Himes, was filed last year by a couple seeking recognition of their same-sex marriage for the purpose of obtaining a death certificate. After U.S. District Judge Timothy Black ruled in favor of the couple, the state appealed the decision to the U.S. Sixth Circuit Court of Appeals.
It’s the limited scope of the issues presented before the Sixth Circuit that Kaplan says makes her intervention in the case necessary — along with the participation of her clients seeking outright marriage equality in Ohio.
“[A] decision by the Sixth Circuit on the equal protection claims raised — even on the “narrow” issue of the recognition of an out-of- state gay marriage on an Ohio death certificate — will likely implicate the extension of all of the other state-conferred rights and responsibilities of marriage to committed gay couples in Ohio,” Kaplan writes. “In fact, participation in this case by the Proposed Intervenors is the only way for this Court to hear and consider the myriad Ohio statutory provisions that are implicated by the Ohio constitutional amendment at issue in violation of the United States Constitution’s guarantee of equal protection.”
Both the ACLU and the State of Ohio objected to Kaplan’s participation in the lawsuit in separate briefs filed late last week. The opposition from the ACLU was particularly noteworthy because the organization had previously teamed up with Kaplan to represent New York widow Edith Windsor in the case in which the Supreme Court struck down Section 3 of DOMA.