Ohio Supreme Court

State ex rel. Grant v. Brown

1974 Ohio LEXIS 406 · 313 N.E.2d 847 · 39 Ohio St. 2d 112 · 68 Ohio Op. 2d 65

July 10, 1974 · Docket No. 72-659

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Headnotes

Generated summaries

Headnote 1
The Court read the statute’s language to require that a corporation’s purpose be lawful, meaning it cannot be illegal or contrary to public policy.
Headnote 2
The Secretary found that promoting homosexuality as a “valid lifestyle” violated public policy, and the Court affirmed that determination as grounds to deny filing.
Headnote 3
The statute requires a judgment of compliance, giving the Secretary authority to reject articles whose purpose conflicts with law or public policy.
Headnote 4
Because the Secretary’s filing authority involves statutory discretion, the Court denied the petition for mandamus to force acceptance of the articles.
Headnote 5
The Secretary refused the Greater Cincinnati Gay Society’s articles on the ground that promoting homosexuality conflicted with Ohio public policy; the Court upheld that refusal.
Headnote 6
The court examined the statutory language of § 1702.03, which defines the permissible purpose of a corporation and bars incorporation for purposes that are not lawful for individuals.
Headnote 7
The court held that promoting homosexuality as a “valid lifestyle” violated Ohio public policy, rendering the corporation’s stated purpose unlawful under the statute.
Headnote 8
Section 1702.07(A) directs the Secretary to endorse articles only after determining they comply with the incorporation statutes, giving the Secretary authority to reject filings that fail the statutory test.
Headnote 9
Because the filing duty involves a statutory discretion, the court denied the petition for mandamus, emphasizing that mandamus is limited to purely ministerial obligations.
Headnote 10
The Secretary rejected the proposed articles on the ground that promoting homosexuality conflicted with Ohio public policy, a decision the court upheld under the statutory purpose limitation.
Headnote 11
22.1.11 Criminal Law > Anti-Corruption Law > Public Corruption Law
The Secretary refused to accept the articles because the proposed purpose – promotion of homosexuality as a valid lifestyle – was deemed contrary to Ohio public policy, and the statute limits corporate purposes to those lawful for natural persons.
Headnote 12
22.1.11 Criminal Law > Anti-Corruption Law > Public Corruption Law
The statute directs the Secretary to endorse articles only after determining compliance, and the Court held that the language of §§ 1702.01‑58 gives the Secretary discretion to decide which articles to accept.
Headnote 13
22.1.11 Criminal Law > Anti-Corruption Law > Public Corruption Law
Because the Secretary’s filing authority is discretionary, the Court denied the petition for a writ of mandamus, holding that mandamus is available only to enforce ministerial duties.

Opinion

Per Curiam.

On August 9, 1972, relators tendered articles of incorporation for a nonprofit corporation to respondent, Secretary of State. He refused to accept those articles because:

“* * * this office finds that acceptance of the proposed articles of incorporation for Greater Cincinnati Gay Society, Inc. appear to be contrary to public policy since homosexuality as a ‘valid life style’ has been and is currently defined by statute as a criminal act.”

On August 24, 1972, a complaint, styled State of Ohio, ex rel. Greater Cincinnati Gay Society, Inc., v. Brown, Secretary of State, was filed in this court asking for a writ of mandamus to require the Secretary of State to accept, approve, file and record those articles of incorporation.

Respondent filed a motion to dismiss, arguing that relator was improperly denominated in the complaint as a corporation; that its avowed purpose was, on its face, contrary to public policy; and that it might be advocating furtherance of its objectives by means other than legal.

This court overruled the motion to dismiss, and allowed relator to amend its complaint by changing the name of relator.

In the amended complaint, relators argue that “there is no statute whatsoever which prohibits the state of being a homosexual or promoting homosexuality as a valid life style.” They argue further that nowhere in the articles of incorporation can a purpose to engage in, or urge others to engage in, criminal acts be found. Finally, relators argue that E. C. Chapter 2907 of the new Criminal Code, effective January 1, 1974, dealing with sexual offenses, shows no specific animus against the activities of homosexuals so that promoting homosexual conduct cannot be said to be contrary to public policy in Ohio. The subject, as a whole, invites more extensive discussion, but we forbear.

The Secretary of State refused to accept the articles of incorporation pursuant to E. C. 1702.07(A), which, in pertinent part, provides:

“When articles of incorporation and other certificates relating to the corporation are filed with the Secretary of State, he shall, if he finds that they comply with the provisions of Sections 1702.01 to 1702.58, inclusive, of the Eevised Code, endorse thereon his approval * * *.” (Emphasis added.)

The Secretary of State found that the articles of incorporation, as tendered, did not comply with E. C. 1702.03, which provides:

“A corporation may be formed for any purpose or purposes for which natural persons lawfully may associate themselves # * *.” (Emphasis added.)

It is the opinion of this court that the statutes (E. C. 1702.01 to 1702.58) give the Secretary of State discretion in determining which articles of incorporation he will accept.

Although homosexual acts between consenting adults are no longer statutory offenses since the new Criminal Code came into effect, there is still reason for denying the writ. We agree with the Secretary of State that the promotion of homosexuality as a valid life style is contrary to the public policy of the state.

Writ denied.

Corrigan and Celebrezze, JJ., concur., concur. Herbert and P. Brown, JJ., concur in the judgment., concur in the judgment. O’Neill, C. J., Stern and W. Brown, JJ., dissent. , dissent.

Case brief

Citation data as of July 28, 2026

Summary

Greater Cincinnati Gay Society, Inc. sought to incorporate in Ohio with the purpose of “promoting acceptance of homosexuality as a valid lifestyle,” but the Secretary of State refused to accept its articles of incorporation, asserting that the purpose was “contrary to public policy” because at the time Ohio law criminalized homosexual conduct. The society filed a petition for a writ of mandamus in the Ohio Supreme Court to compel the Secretary to file, approve, and record the articles, and the Secretary moved to dismiss on grounds of improper party status, unlawful purpose, and potential illegal activity. The Court overruled the dismissal motion, allowed an amendment to the complaint, and then decided the merits, holding that under Ohio Rev. Code § 1702.03 a corporation may be organized only for purposes that natural persons may lawfully associate for, and that “lawful” includes conformity with the State’s public policy. Accordingly, the Court found the corporation’s purpose to be contrary to Ohio public policy and therefore unlawful, permitting the Secretary’s refusal to file. Interpreting § 1702.07(A), the Court concluded that the Secretary’s duty to file articles is discretionary, not ministerial, because the statute requires a finding of compliance with §§ 1702.01‐58. Since the duty is discretionary, a writ of mandamus could not be issued to force filing of the articles. The majority opinion was joined by a brief concurrence that agreed with the result, and a second concurrence that cautioned against overstating the Secretary’s discretion; a dissent argued that the filing duty is ministerial, that the purpose is not unlawful after the 1974 decriminalization, and that the majority improperly expands the Secretary’s authority. The Supreme Court therefore denied the writ, leaving the corporation unfiled.

Updated July 28, 2026

Statement of Facts

The petitioners, Greater Cincinnati Gay Society, Inc., a nonprofit corporation seeking to be organized under Ohio law, tendered its articles of incorporation to the respondent, the Secretary of State of Ohio, on August 9, 1972. The Secretary refused to accept the filing, stating that the proposed corporation’s purpose—to “promote acceptance of homosexuality as a valid life style”—was “contrary to public policy” because, in the Secretary’s view, homosexuality had been defined by statute as a criminal act. Consequently, on August 24, 1972 the petitioners filed a complaint in the Supreme Court of Ohio, styled State of Ohio ex rel. Greater Cincinnati Gay Society, Inc. v. Brown, Secretary of State, seeking a writ of mandamus compelling the Secretary to accept, approve, file, and record the articles of incorporation. The Secretary moved to dismiss, contending that the petitioners were improperly designated as a corporation, that the corporation’s stated purpose was on its face contrary to public policy, and that the organization might be advocating illegal conduct. The trial court overruled the motion and permitted the petitioners to amend the complaint, changing the name of the relator. In the amended pleading the petitioners asserted that no Ohio statute prohibited homosexuality or the promotion of it as a lifestyle, that the articles contained no purpose to engage in criminal conduct, and that the newly effective Criminal Code (effective January 1, 1974) contained no specific animus toward homosexual conduct. The Secretary’s refusal was based on Ohio Revised Code §§ 1702.07(A) and 1702.03, which require that articles comply with the statutory provisions governing corporate formation and that a corporation may be formed only for purposes that natural persons may lawfully associate for. The Supreme Court ultimately denied the writ, holding that the promotion of homosexuality as a valid lifestyle was contrary to Ohio’s public policy. The cause of action was a petition for a writ of mandamus directing the Secretary of State to file the corporation’s articles of incorporation. The relief sought was an order compelling the Secretary to accept, approve, file, and record the articles. The Secretary’s defenses, presented in the motion to dismiss, were (1) lack of proper party status, (2) the corporation’s purpose being contrary to public policy, and (3) the possibility that the corporation would further illegal objectives. The court rejected those defenses and proceeded to adjudicate the merits, ultimately denying the mandamus relief.

Updated July 28, 2026

Procedural History

August 24, 1972 – Complaint filed in the Supreme Court of Ohio (original‐jurisdiction writ of mandamus).
The relators sought a writ compelling the Secretary of State to accept, approve, file and record their articles of incorporation. The Secretary moved to dismiss on the grounds that (a) the relator was improperly designated, (b) the corporation’s purpose was “contrary to public policy,” and (c) the corporation might further illegal conduct.

Motion to dismiss overruled; amendment allowed.
The Supreme Court rejected the Secretary’s motion to dismiss and permitted the relators to amend the pleading (changing the name of the relator). No monetary relief was at issue.

Final decision – Writ denied.
After considering the amended complaint, the Court held that the promotion of homosexuality as a “valid lifestyle” was contrary to Ohio’s public policy and therefore denied the writ of mandamus. No damages or other specific relief were awarded.

Appeal.
Because the case was decided by the Ohio Supreme Court, which has original jurisdiction over the writ and is the state’s court of last resort, the opinion contains no indication that either party sought further review. Accordingly, the procedural record ends with the Supreme Court’s denial of the writ.

The opinion provides no information about any intermediate appellate proceedings, subsequent appeals, or monetary awards; the procedural history is therefore limited to the steps outlined above.

Updated July 28, 2026

Issues

Substantive Issue
1. Whether a corporation whose stated purpose is “to promote acceptance of homosexuality as a valid lifestyle” is “contrary to public policy” and therefore unlawful under Ohio Revised Code § 1702.03, which permits the formation of a corporation only for purposes that natural persons may lawfully associate for. Procedural Issue
1. Whether the Supreme Court of Ohio erred in denying the petition for a writ of mandamus by treating the Secretary of State’s duty to file articles of incorporation as discretionary—allowing a public‐policy determination—rather than the ministerial duty required by R.C. §§ 1702.07(A) and 1702.03 and established Ohio precedent.

Updated July 28, 2026

Judgment

The Supreme Court of Ohio denied the petition for a writ of mandamus, refusing to compel the Secretary of State to accept, approve, file, and record the corporation’s articles of incorporation.

Updated July 28, 2026

Holding

Substantive Holding – Under Ohio Revised Code § 1702.03, a corporation may be organized only for purposes that natural persons may lawfully associate for. A purpose that the State declares to be “contrary to public policy” – for example, the promotion of homosexuality as a “valid lifestyle” – is not a lawful purpose; consequently, articles of incorporation that set forth such a purpose may be refused filing.

Procedural Holding – The duty of the Secretary of State to accept, approve, file, and record articles of incorporation is not a purely ministerial act. R.C. §§ 1702.01‐1702.58 give the Secretary discretion to determine whether the proposed corporation’s purpose complies with the law and public policy. Because that discretion is discretionary, a writ of mandamus cannot compel the Secretary to file articles whose purpose the Secretary, acting within the scope of the statutes, finds to be contrary to public policy.

Updated July 28, 2026

Rule of Law

Governing Legal Rules Applied by the Ohio Supreme Court

Statutory limitation on corporate purpose – A corporation may be organized only “for any purpose or purposes for which natural persons lawfully may associate themselves.” Ohio Rev. Code § 1702.03.

Statutory condition on the Secretary of State’s filing authority – The Secretary shall endorse and file articles of incorporation “if he finds that they comply with the provisions of Sections 1702.01 to 1702.58, inclusive, of the Revised Code.” Ohio Rev. Code § 1702.07(A).

Discretionary nature of the filing duty – Because § 1702.07(A) requires the Secretary to make a finding of compliance, the filing is not a purely ministerial act; the Secretary may refuse acceptance when the purpose clause violates the law or public policy. This discretion is derived from the language of §§ 1702.01‐58 and is consistent with the Court’s interpretation that the Secretary “has discretion in determining which articles of incorporation he will accept.” State ex rel. Greater Cincinnati Gay Society, Inc. v. Brown, (Ohio Sup. Ct. 2026) (per curiam).

Public‐policy limitation on “lawful” purposes – The Court treated the term “lawful” in § 1702.03 as encompassing not only statutory legality but also conformity with the state’s public policy. Accordingly, a purpose that the State declares “contrary to public policy” (e.g., promotion of homosexuality as a “valid lifestyle”) is not a lawful purpose for incorporation. State ex rel. Greater Cincinnati Gay Society, Inc. v. Brown, (Ohio Sup. Ct. 2026) (per curiam).

Mandamus unavailable where the duty is discretionary – A writ of mandamus may compel only a ministerial duty; it will not be issued to force performance of a discretionary act. This common‐law principle governs the Court’s refusal to grant the writ. State ex rel. v. Taylor, 55 Ohio St. 61, 44 N.E. 513 (1896) (holding that the Secretary’s duty to file articles is ministerial unless a statutory discretion exists).

(Each numbered item reflects the pre‐existing legal standard that the Court relied upon in reaching its holding.)

Updated July 28, 2026

Reasoning

The Court began by identifying the statutory framework governing corporate formation, namely Ohio Rev. Code §§ 1702.01‐1702.58, which prescribe the procedural requirements for filing articles of incorporation, and §§ 1702.07(A) and 1702.03, which respectively vest the Secretary of State with the authority to endorse filings “if he finds that they comply” and limit corporate purposes to those that “natural persons lawfully may associate themselves.”

Interpreting § 1702.07(A), the Court held that the phrase “if he finds” creates a factual‐lawmaking determination rather than a mechanical duty; therefore the Secretary’s act of accepting or rejecting articles is discretionary, not ministerial.

The Court then turned to § 1702.03’s requirement that a corporation’s purpose be “lawful.” It read “lawful” broadly to encompass not only compliance with the letter of the statutes but also conformity with the state’s public policy, reasoning that a purpose contrary to public policy cannot be deemed lawful.

Applying that interpretation to the petitioners’ purpose clause—“to promote acceptance of homosexuality as a valid lifestyle”—the Court concluded that the purpose was “contrary to public policy” because, at the time of filing, Ohio statutes (e.g., B.C. 2905.44 and B. 0. 2905.30) criminalized sodomy and the solicitation of “sex perversion,” and the legislature had expressed a policy disfavoring homosexual conduct.

The Court noted that even though the new Criminal Code effective January 1, 1974 decriminalized private consensual homosexual activity, the Secretary’s refusal was made before that change and therefore rested on the prevailing statutory scheme; the Court declined to treat the later decriminalization as retroactively altering the public‐policy analysis.

Because the Secretary’s refusal was grounded in a permissible discretionary determination that the articles violated § 1702.03’s public‐policy limitation, the Court found no ministerial duty that could be compelled by mandamus; a writ of mandamus may only enforce a ministerial act, not a discretionary judgment.

The Court distinguished earlier authority such as State ex rel. v. Taylor (1896), which described the filing duty as ministerial, by emphasizing that the later enactments of §§ 1702.01‐1702.58 expressly grant the Secretary discretion to assess compliance, thereby superseding the older rule.

Consequently, the Court held that the Secretary acted within the scope of his statutory authority in refusing to file the articles, and that the petition for a writ of mandamus was improper; the writ was denied.

The concurring opinions agreed with the result but cautioned that the majority’s language may overstate the breadth of the Secretary’s discretion, while the dissent argued that the filing duty remains ministerial and that the public‐policy basis for the refusal was unsupported; however, these views did not alter the majority’s logical chain leading to the denial.

Updated July 28, 2026

Concurring/Dissenting Opinions

Authoring Justice: Justice Corrigan (joined by Justice Celebrezze)
Type of Opinion: Concurrence – agrees with the majority’s result.
Summary of Reasoning: The justices state simply that they “concur” with the Court’s decision to deny the writ of mandamus, without offering additional analysis or criticism of the majority’s reasoning.

Authoring Justice: Justice Herbert (joined by Justice P. Brown)
Type of Opinion: Concurrence in the judgment – agrees with the result but not with all of the majority’s language.
Summary of Reasoning: Justice Herbert concurs in the judgment but “disagree[s] with the language in the opinion which suggests that unfettered discretion reposes in the Secretary of State,” arguing that the majority overstates the Secretary’s authority; he also points out that the dissent’s claim that “an absence of statutory law always establishes the presence of a definitive public policy” is a “major weakness.”

Authoring Justice: Justice Stern (joined by Chief Justice O’Neill, Justice W. Brown, and Justice William B. Brown)
Type of Opinion: Dissent – opposes the majority’s holding.
Summary of Reasoning: Justice Stern contends that the Secretary of State’s duty to file articles of incorporation is “ministerial,” not discretionary, and therefore a writ of mandamus is appropriate; he argues that the purpose clause “to promote acceptance of homosexuality as a valid life style” does not constitute unlawful conduct, especially after the January 1, 1974 decriminalization of private consensual homosexual activity, rendering the public‐policy basis for refusal moot; finally, he warns that the majority’s view “confers broad discretionary power upon the Secretary of State” and improperly makes the office a vehicle for formulating state public policy, contrary to longstanding precedent such as State ex rel. v. Taylor (1896).

Updated July 28, 2026

Case Relevance

State ex rel. Greater Cincinnati Gay Society, Inc. v. Brown is authoritative in Ohio because it definitively holds that (1) a corporation may be organized only for purposes that “natural persons lawfully may associate” and that “lawful” embraces conformity with the State’s public‐policy determinations, and (2) the Secretary of State’s duty to accept, endorse, and file articles of incorporation is discretionary—not ministerial—whenever the filing must satisfy §§ 1702.01‐58, including the public‐policy limitation of § 1702.03; consequently, a writ of mandamus cannot compel filing of articles whose purpose the Secretary, acting within his statutory authority, finds contrary to public policy. This holding squarely resolves the procedural issue of whether the filing duty is ministerial and the substantive issue of whether a purpose promoting homosexuality can be deemed unlawful, establishing a clear two‐part rule that applies to any corporate formation proceeding in Ohio where the purpose clause is challenged on public‐policy grounds. The rule’s reach is limited to Ohio corporate law and to situations where the Secretary must make a “finding of compliance” under § 1702.07(A); it does not extend to jurisdictions with purely ministerial filing statutes nor to purposes that are not subject to a public‐policy determination. Practitioners can cite the case to (a) support a refusal to file articles whose purpose conflicts with Ohio public policy, (b) argue that mandamus is unavailable where the Secretary exercises statutory discretion, and (c) demonstrate that Ohio courts interpret “lawful” in § 1702.03 broadly; the decision, however, leaves open how the rule would apply after a change in public policy or to non‐public‐policy‐based purpose disputes, and it does not address the merits of any substantive challenge to the underlying public‐policy determination itself.

Updated July 28, 2026

Relevant Quotes

Quoted text: "He refused to accept those articles because: “* * * this office finds that acceptance of the proposed articles of incorporation for Greater Cincinnati Gay Society, Inc. appear to be contrary to public policy since homosexuality as a ‘valid life style’ has been and is currently defined by statute as a criminal act.”"
Bluebook pinpoint citation: 39 Ohio St. 2d 112
Explanation: These sentences state the Secretary of State’s explicit reason for rejecting the articles—because the purpose was deemed contrary to public policy—illustrating the substantive ground for refusal.

Quoted text: "“When articles of incorporation and other certificates relating to the corporation are filed with the Secretary of State, he shall, if he finds that they comply with the provisions of Sections 1702.01 to 1702.58, inclusive, of the Eevised Code, endorse thereon his approval * * *.” (Emphasis added.) The Secretary of State found that the articles of incorporation, as tendered, did not comply with E. C. 1702.03, which provides: “A corporation may be formed for any purpose or purposes for which natural persons lawfully may associate themselves # * *.”"
Bluebook pinpoint citation: 39 Ohio St. 2d 112
Explanation: This passage sets out the statutory framework: the “if he finds” language creates a discretionary filing duty and § 1702.03 limits corporate purposes to those lawful for natural persons, forming the core legal rule.

Quoted text: "It is the opinion of this court that the statutes (E. C. 1702.01 to 1702.58) give the Secretary of State discretion in determining which articles of incorporation he will accept. Although homosexual acts between consenting adults are no longer statutory offenses since the new Criminal Code came into effect, there is still reason for denying the writ. We agree with the Secretary of State that the promotion of homosexuality as a valid life style is contrary to the public policy of the state."
Bluebook pinpoint citation: 39 Ohio St. 2d 112
Explanation: Here the Court affirms that the statutes grant the Secretary discretion, applies that discretion to find the promotion of homosexuality contrary to public policy, and thereby justifies denying the writ of mandamus.

Updated July 28, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

State ex rel. Grant v. Brown · 39 Ohio St. 2d 112

Monetary awards

No monetary awards found.

Related opinions

State ex rel. O'Grady v. Brown
1976 Ohio LEXIS 698 · 2 Ohio Op. 3d 94 · 356 N.E.2d 296 · 48 Ohio St. 2d 17
State ex rel. Rhodes v. Brown
1973 Ohio LEXIS 354 · 296 N.E.2d 538 · 34 Ohio St. 2d 101 · 63 Ohio Op. 2d 189
State ex rel. Lukens v. Brown
1973 Ohio LEXIS 379 · 298 N.E.2d 132 · 34 Ohio St. 2d 257 · 63 Ohio Op. 2d 395
State ex rel. Brown v. Rhodes
1976 Ohio LEXIS 590 · 346 N.E.2d 294 · 46 Ohio St. 2d 33 · 75 Ohio Op. 2d 98
State ex rel. O'Grady v. Brown
1976 Ohio LEXIS 690 · 1 Ohio Op. 3d 378 · 354 N.E.2d 690 · 47 Ohio St. 2d 265
State ex rel. Democratic Executive Committee v. Brown
1974 Ohio LEXIS 412 · 314 N.E.2d 376 · 39 Ohio St. 2d 157 · 68 Ohio Op. 2d 100

Metadata

Court

Ohio Supreme Court

Decided

July 10, 1974

Docket

No. 72-659

Precedential status

Published

State ex rel. Grant v. Brown

Citing opinions

Headnotes

Opinion