Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 1 of 32

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as the Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA,
Defendants.

Civil Action No. _______________

COMPLAINT INTRODUCTION In 2004, the Commonwealth of Massachusetts became the first state to end the exclusion of same-sex couples from marriage. Since that time, more than 16,000 qualified and committed same-sex couples have married in Massachusetts and the security and stability of families has been strengthened in important ways throughout the state. Despite these developments, samesex couples in Massachusetts are still denied essential rights and protections because the federal Defense of Marriage Act (“DOMA”) interferes with the Commonwealth’s sovereign authority to define and regulate marriage. As applied to the Commonwealth and its residents, DOMA constitutes an overreaching and discriminatory federal law. In this case, the Commonwealth challenges the constitutionality of Section 3 of DOMA, codified at 1 U.S.C. § 7. Section 3 of DOMA creates an unprecedented federal definition of

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marriage limited to a union between one man and one woman. Congress’s decision to enact a federal definition of marriage rejected the long-standing practice of deferring to each state’s definition of marriage and contravened the constitutional designation of exclusive authority to the states. From its founding until DOMA was enacted in 1996, the federal government recognized that defining marital status was the exclusive prerogative of the states and an essential aspect of each state’s sovereignty, and consistently deferred to state definitions when the marital status of an individual was used as a marker of eligibility for rights or protections under federal law.
Now, because of Section 3 of DOMA, married individuals in same-sex relationships are both denied access to critically important rights and benefits and not held to the same obligations and responsibilities arising out of marriage or based on marital status. DOMA precludes samesex spouses from a wide range of important protections that directly affect them and their families, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments. In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.
Section 3 of DOMA applies to all federal laws retrospectively and prospectively. In so doing, it affects the Commonwealth in significant ways. First, DOMA interferes with the Commonwealth’s exclusive authority to determine and regulate the marital status of its citizens. Although the Commonwealth views all married persons identically, Section 3 of DOMA creates two distinct classes of married persons in Massachusetts by denying hundreds of rights and protections to married individuals in same-sex relationships. Second, Section 3 of DOMA imposes conditions on the Commonwealth’s participation in certain federally funded programs
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that require the Commonwealth to disregard marriages validly solemnized under Massachusetts law. DOMA’s sweeping scope exceeds the powers granted to Congress and violates the United States Constitution.
The Commonwealth seeks declaratory and injunctive relief for the narrow but critical purpose of enabling it to define marriage within its own boundaries. This action does not address the application of DOMA in states that do not recognize marriages between same-sex couples. It does, however, seek to remedy the fundamental unfairness that DOMA causes to Massachusetts and its residents by denying those residents equal treatment under the law.
NATURE OF THE ACTION 1. The Commonwealth, by and through its Attorney General Martha Coakley, brings this action seeking a declaratory judgment that Section 3 of DOMA, codified at 1 U.S.C. § 7, is unconstitutional as well as injunctive relief prohibiting the enforcement of Section 3 against Massachusetts.1 2. Section 3 of DOMA exceeds congressional authority and interferes with the Commonwealth’s sovereign authority to define marriage, in violation of the Tenth Amendment to the United States Constitution, Congress’s Article I powers, and the Constitution’s principles of federalism. Due to the extensive scope of federal rights, obligations, and protections linked to marital status, Section 3 of DOMA creates two separate and unequal categories of married couples in the Commonwealth. Despite the Commonwealth’s recognition of only one category
1 The Commonwealth’s lawsuit does not challenge Section 2 of DOMA, codified at 28 U.S.C. § 1738C, which provides that states shall not be required to recognize marriages between individuals of the same sex that are validly solemnized in other states. This lawsuit is, instead, limited to the impact of Section 3 of DOMA within the borders of the Commonwealth. Accordingly, the Commonwealth does not assert any claims regarding the decision of other states to define marriage as a union between one man and one woman.
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of married persons, Section 3 of DOMA changes the meaning of marriage in Massachusetts and commandeers state employees into implementing federal policy that contradicts Massachusetts law and violates the United States Constitution. This usurps the Commonwealth’s authority and contravenes constitutionally mandated principles of federalism.
3. In addition, Section 3 of DOMA, through its application to programs administered by the Commonwealth and funded by the federal government, requires the Commonwealth to treat married individuals in same-sex relationships differently from married individuals in different-sex relationships. When the Commonwealth receives federal funding for various programs, federal law requires the Commonwealth to implement DOMA’s disregard of valid marriages between same-sex couples. Section 3 of DOMA requires the Commonwealth to treat married individuals in same-sex relationships as single, imposing an impermissible condition on the Commonwealth in violation of the Spending Clause of Article I of the United States Constitution.
4. This case is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and Federal Rule of Civil Procedure 57.
PARTIES 5. The Commonwealth brings this action in its own capacity as a sovereign state. The Commonwealth has a significant interest in treating its residents equally as required by its constitution and laws and as further required by the United States Constitution. The Commonwealth also has an interest in maintaining its sovereign authority to define the marital status of its citizens, as well as an interest in not being conscripted as an agent implementing federal policy that conflicts with Massachusetts law and violates the United States Constitution.
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The Commonwealth further has an interest in not being subject to unconstitutional conditions in connection with its receipt of federal funds.
6. Defendant the United States Department of Health and Human Services is responsible for the administration of the Centers for Medicare and Medicaid Services.
7. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services. She is named as a defendant in her official capacity only.
8. Defendant the United States Department of Veterans Affairs is responsible for the National Cemetery Administration and the State Cemetery Grants Service.
9. Defendant Eric K. Shinseki is the Secretary of the United States Department of Veterans Affairs. He is named as a defendant in his official capacity only.
10. The United States of America is named as a defendant because this action challenges the constitutionality of an Act of Congress. 28 U.S.C. § 2403(a).
JURISDICTION 11. The Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1346(a)(2) because it arises under the Constitution and laws of the United States. 12. Venue is proper in this judicial district under 28 U.S.C. § 1391(e)(3), because no real property is involved in this action, the Commonwealth is situated in this judicial district, and the defendants are officers of the United States, agencies of the United States, and the United States.
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MARRIAGE EQUALITY IN MASSACHUSETTS 13. In Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), the Supreme Judicial Court of Massachusetts recognized that, without access to marriage, same-sex couples were “excluded from the full range of human experience and denied full protection of the [Massachusetts] laws.” Id. at 957. 14. The Supreme Judicial Court concluded that marriage is among the most basic of liberty interests and due process rights and that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution. 798 N.E.2d at 959-961, 968. 15. The Supreme Judicial Court stayed entry of its ruling for 180 days in order to give the Massachusetts General Court (the state legislature) an opportunity to remedy the constitutional infirmity. 798 N.E.2d at 970. 16. On February 3, 2004, the Supreme Judicial Court rendered an advisory opinion to the Massachusetts General Court concluding that a bill prohibiting same-sex couples from entering into marriage, but allowing them to form civil unions, would not comply with the Goodridge decision and would violate the Massachusetts Constitution. In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004). 17. Since May 17, 2004 – 180 days after the Goodridge decision – the Commonwealth has recognized a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex. 18. In September 2005, a Joint Session of the Commonwealth’s Legislature (commonly referred to as a state “constitutional convention”) overwhelmingly defeated a
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legislatively proposed constitutional amendment to prohibit marriages between same-sex couples.
19. In June 2007, during another Joint Session of the Legislature, state legislators considered a citizen-initiated proposed constitutional amendment to prohibit marriages between individuals of the same sex. That proposed constitutional amendment failed to obtain the twenty-five percent of votes needed to send it to the electorate in the state elections of November 2008.
20. On July 31, 2008, the Massachusetts General Court repealed a 1913 law (MASS. GEN. LAWS ch. 207, §§ 11-12) that barred couples from marrying in Massachusetts if that marriage was prohibited in their home state. The repeal had the effect of permitting same-sex couples who resided in other states to obtain marriage licenses in Massachusetts.
FEDERAL DEFENSE OF MARRIAGE ACT 21. Prior to 1996, the federal government of the United States recognized that the authority to create and regulate marital status was the exclusive prerogative of the states and consistently deferred to each state’s definition of marriage, including when the marital status of an individual was used as a marker of eligibility for a right, responsibility, or protection under federal law. 22. DOMA was enacted in anticipation of the possibility that Hawai`i might permit marriages between same-sex couples. In 1993, the Supreme Court of Hawai`i ruled in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), that refusing to grant marriage licenses to same-sex couples was sex-based discrimination. However, the court remanded the case for further proceedings and did not order the state to begin issuing marriage licenses to same-sex couples. As a result, at
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the time that DOMA was enacted, no state recognized marriages between individuals of the same sex.
23. DOMA, when it was enacted, eviscerated more than 200 years of federal government deference to the states with respect to defining marriage.
24. DOMA prospectively invalidated marriages between same-sex couples for purposes of all federal laws, whether enacted before or after DOMA. It provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. 25. DOMA applies to all facets of the federal government. It also applies to the states when the states implement federal programs or are subject to federal law, including federal tax requirements applicable when the a state acts as an employer. 26. But for DOMA, married individuals in same-sex relationships in the Commonwealth would receive the same status, obligations, responsibilities, rights, and protections as married individuals in different-sex relationships under local, state, and federal laws. 27. DOMA was enacted for the purported purpose of defending “the institution of traditional heterosexual marriage,” H.R. REP. NO. 104-664, at 2, 12 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906, notwithstanding the fact that the determination of marital status is a power reserved exclusively to the states. At the time of DOMA’s enactment, several members of Congress expressed doubts about DOMA’s constitutionality because Congress had never previously defined marriage. See, e.g., 142 CONG. REC. H7446 (daily ed. July 11, 1996)
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(DOMA “defines marriage in Federal law for the first time and says to any State, ‘No matter what you do, whether you do it by referendum or by public decision or by legislative action, the Federal Government won’t recognize a marriage contracted in your state if we don’t like the definition. We are going to trample the States’ rights’ . . . .”) (statement of Rep. Jerrold Nadler); id. at H7449 (“[DOMA] is an unnecessary intrusion into the State domain of family law. It tears at the fabric of our Constitution. Historically, States have the primary authority to regulate marriage based upon the Tenth amendment of the Constitution. . . . If there is any area of law to which States can lay a claim to exclusive authority, it is the field of family relations.”) (statement of Rep. Neil Abercrombie); 142 CONG. REC. S10120 (daily ed. Sept. 10, 1996) (“[I]t is not clear that this is even an appropriate area for Federal legislation. Historically, family law matters, including marriage, divorce, and child custody laws, have always been within the jurisdiction of State governments, not the Federal Government.”) (statement of Sen. Russell Feingold).
28. Although DOMA was enacted for the purported purpose of preserving state sovereignty, H.R. REP. NO. 104-664, at 2, Section 3 of DOMA actually interferes with each state’s authority to define marriage. Congress intended that marriages between same-sex couples not be given the same “imprimatur of legal sanction” as marriages between different-sex couples. 142 CONG. REC. H7446 (daily ed. July 11, 1996) (statement of Rep. Jim Talent); see also 142 CONG. REC. S10101 (daily ed. Sept. 10, 1996) (“Inaction on the part of Congress would be equivalent to approval of what the Hawaiian courts may do. We can’t afford such action.”) (statement of Sen. Trent Lott).
29. DOMA was enacted to codify animus against gay and lesbian people. H.R. REP. NO. 104-664, at 15-16; 142 CONG. REC. H7444 (daily ed. July 11, 1996) (“[N]o society that has lived through the transition to homosexuality and the perversion which it lives and what it
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brought forth.”) (statement of Rep. Tom Coburn); 142 CONG. REC. H7482 (daily ed. July 12, 1996) (“The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society….”) (statement of Rep. Bob Barr); 142 Cong. Rec. S10068 (daily ed. Sept. 9, 1996) (DOMA “will safeguard the sacred institutions of marriage and the family from those who seek to destroy them and who are willing to tear apart America’s moral fabric in the process.”) (statement of Sen. Jesse Helms).
30. DOMA was enacted to deny federal rights and protections to same-sex couples who are validly married under state law. H.R. REP. NO. 104-664, at 18. For example, DOMA was enacted so that the federal government would not have to provide survivorship benefits to the surviving same-sex spouse of a veteran of the Armed Services. Id. (without DOMA, “these marital [survivorship] benefits would … have to be made available to homosexual couples and surviving spouses of homosexual ‘marriages’ on the same terms as they are now available to opposite-sex married couples and spouses.”).
31. DOMA was also enacted for the purported purpose of preserving federal resources by denying benefits and entitlements to married individuals in same-sex relationships who would qualify for such benefits if they were in a different-sex relationship. H.R. REP. NO. 104-664, at 18. The Congressional Budget Office, however, has estimated that, if marriages between same-sex couples were recognized in all fifty states and by the federal government, the federal budget would benefit by $500 million to $900 million annually. Congressional Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (June 21, 2004) at 1, available at http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf. This
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net benefit is due to estimated increased revenues through income and estate taxes and decreased outlays for Supplemental Security Income, Medicaid, and Medicare. Id. at 2, 5.
FEDERAL REGULATION OF MARRIAGE 32. Section 3 of DOMA trespasses on a core area of state sovereignty by creating two distinct and unequal categories of married persons in states, such as Massachusetts, in which the legal status of marriage extends to both same-sex and different-sex couples. 33. Since the founding of the United States, the determination of who can marry and who is recognized as being married has been made by state law. Prior to DOMA’s enactment, federal law referring to marital status incorporated state definitions of marriage. In contravention of this longstanding respect for states’ prerogative to define the institution of marriage, Section 3 of DOMA creates a federal definition of marriage and regulates the meaning of marriage within the sovereign states. 34. The federal General Accounting Office identified 1,138 statutory provisions in which marital status is a factor in determining eligibility for or entitlement to federal benefits, rights, and privileges. General Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO/OGC-04-353R (January 23, 2004), updating General Accounting Office, Defense of Marriage Act, GAO/OGC-97-16 (January 31, 1997), available at http://www.gao.gov/new.items/d04353r.pdf. 35. These federal laws create rights, obligations, and protections pertaining to a wide range of areas, including the workplace, healthcare, taxes, Social Security, retirement, intellectual property, and court proceedings. They significantly affect the lives of every married person throughout the United States. By disregarding Massachusetts’s definition of marriage,
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DOMA prevents legally married same-sex couples in the Commonwealth from having access to hundreds of rights and protections provided to married different-sex couples.
36. For example, Social Security benefits are affected by marital status in a variety of ways. Spouses qualify for up to fifty percent of a disabled worker’s benefit, spouses are entitled to a higher benefit upon the retirement or death of their spouse, and surviving spouses are given a one-time lump-sum death benefit.
37. Eligibility for Medicare benefits is likewise affected by marital status. Being married allows an otherwise ineligible individual to qualify for free hospital insurance (Medicare Part A) based on his or her spouse’s work record. Once a person qualifies for Medicare Part A, he or she can enroll in Part B (medical insurance) and, in turn, becomes eligible for Medicare Parts C (Medicare Advantage Plans) and D (prescription drug coverage).
38. In the workplace, spouses enjoy rights relating to retirement and benefits plans, medical leave, and healthcare coverage. Under most private employee benefit plans, which are federally regulated, spouses are guaranteed annuities, spousal approval is required to secure loans with pension benefits, and spouses are the automatic beneficiaries of many plans. When a spouse is ailing, an employee is ensured at least twelve weeks of unpaid leave to care for his or her spouse. In addition, spouses are entitled to enroll in an employer’s healthcare plan outside of the open enrollment period and are allowed to maintain healthcare coverage through the employer even after employment is terminated. A flexible spending account, which is exempt from federal income taxes, can be used to pay for medical expenses incurred by a spouse.
39. Marital status also has a significant impact on federal income tax liability. Spouses are permitted to file a joint income tax return and pool deductions. The value of healthcare coverage provided by an employer to a spouse is not considered taxable income.
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Money and property transferred between spouses is not taxable, and spouses are permitted to contribute portions of their income to Individual Retirement Accounts of their spouses.
40. Spouses of public safety officers (police officers, firefighters, etc.), railroad workers, military veterans, and federal employees are afforded certain rights, including payments for tuition fees, annuities, and healthcare coverage.
41. Other examples of the severe impact of DOMA’s discrimination against Massachusetts citizens who are legally married to a spouse of the same sex are set forth in the Addendum to this Complaint, incorporated here by reference. Under DOMA, all of the rights and protections listed above and in the Addendum are denied to married same-sex couples and their families.
42. Additionally, the severe impact of DOMA is amplified by the fact that the Commonwealth is conscripted as an agent to implement this discriminatory federal scheme.
43. When the Commonwealth acts as an employer, DOMA’s regulation of marriage requires the Commonwealth to disregard the lawful marriages of its own employees. For example, the Commonwealth’s employees have the option of including their spouses as a recipient of health benefits. The Commonwealth, like other employers, is not required to treat the health benefits they provide to different-sex spouses as taxable income. However, because DOMA restricts the meaning of spouse under the Internal Revenue Code, the Commonwealth is required to treat health benefits provided to a same-sex spouse as taxable income for the purpose of federal income and Medicare tax withholding.
44. Approximately 550 employees of the Commonwealth include their same-sex spouses on their health insurance plans. DOMA requires the Commonwealth to collect both federal income and Medicare taxes based on the fair market value of health benefits provided to
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the same-sex spouses of these employees. In order to accommodate DOMA’s requirements, the Commonwealth must undertake a multi-step process involving several different offices and agencies. These additional steps impose a burden on the Commonwealth’s resources.
45. In implementing any federally funded program that is subject to Section 3 of DOMA, the Commonwealth is required to choose between applying the state definition of marriage and applying DOMA’s federal definition. In making that choice, the Commonwealth is faced with an unconstitutional dilemma: maintain federal funding by disregarding marriages that are valid under state law and discriminating against same-sex couples or risk losing federal funding by honoring marriages valid under state law and treating all married couples equally.
FEDERALLY FUNDED PROGRAMS 46. The Massachusetts Executive Office of Health and Human Services provides healthcare coverage to eligible low- and moderate-income individuals and families in Massachusetts through the Commonwealth’s Medicaid program, known as MassHealth. See, e.g., MASS. GEN. LAWS ch. 118E, § 9; 130 MASS. CODE REGS. (“CMR”) § 501.002. Originally enacted in 1965, Medicaid offers assistance to those who have insufficient incomes and resources to meet the costs of necessary medical services. 47. MassHealth is jointly funded by the federal government and the Commonwealth. It is administered exclusively by Massachusetts, and it is overseen by the Defendant United States Department of Health and Human Services through its Centers for Medicare and Medicaid Services (“CMS”). See, e.g., 42 U.S.C. § 1396a (state plans complying with federal mandates receive funds); MASS. GEN. LAWS ch. 118E, § 9 (establishing MassHealth “pursuant to and in conformity with the provisions of” the federal Medicaid statute, 42 U.S.C. §§ 1396 et seq.).
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48. In general, the federal government reimburses half of the qualifying health benefits paid out by MassHealth. Each year, MassHealth receives billions of dollars in federal funding. For the fiscal year ending on June 30, 2008, MassHealth received approximately $5.3 billion in funding from the United States Department of Health and Human Services for the medical assistance program. Commonwealth of Massachusetts, OMB Circular A-133 Report (June 30, 2008) at 9, available at http://www.mass.gov/Aosc/docs/reports_audits/SA/2008/2008_single_audit.pdf.
49. The marital status of an individual seeking or receiving coverage affects MassHealth’s determinations in several ways.
50. MassHealth coverage is provided based on financial eligibility, which is determined based on the applicant’s available income and assets. In assessing eligibility of a married individual, the individual’s income and assets are combined with those of his or her spouse, subject to certain exceptions.
51. Because marital status is a key marker in the eligibility process, the conflict between Section 3 of DOMA and the Commonwealth’s definition of marriage creates two constitutional problems in the implementation of MassHealth. First, federal law requires MassHealth to assess married individuals in same-sex relationships as though they were “single,” whereas married individuals in different-sex relationships must be assessed as married. As a result, in order to comply with federal law, MassHealth must treat married individuals differently depending only on whether they are married to a person of the same sex. Second, MassHealth cannot obtain federal financial participation (“FFP”) for coverage provided to individuals in same-sex marriages who qualify when their marriages are honored in the eligibility analysis.
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52. In 2004, soon after the Goodridge decision, MassHealth sought clarification from CMS as to how to comply with federal law in light of the Commonwealth’s recognition of marriages between individuals of the same sex.
53. CMS informed MassHealth that it must apply the federal definition of marriage, as provided in DOMA, when assessing eligibility for Medicaid benefits. Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004), attached as Exhibit 1.
54. CMS specifically asserted that MassHealth cannot treat an individual in a samesex marriage as eligible for Medicaid benefits on the basis of combined income or assets with a same-sex spouse, if the individual would be ineligible for benefits when considered as “single.” CMS explicitly stated that FFP would not be available for the Commonwealth’s expenditures for such an individual: “DOMA does not give [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.” Ex. 1 at 1.
55. CMS also asserted that federal Medicaid law requires MassHealth to provide coverage to married individuals in same-sex relationships who qualify when assessed as “single.”
56. On July 31, 2008, the Commonwealth enacted the MassHealth Equality Act, codified at MASS. GEN. LAWS ch. 118E, § 61. The law provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal non-recognition of spouses of the same sex.” Id.
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57. In response to enactment of that law, in 2008, CMS again informed the Commonwealth that DOMA “limits the availability of FFP by precluding recognition of same sex couples as ‘spouses’ in the Federal program.” CMS further stated that, “because same sex couples are not spouses under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.” Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21, 2008), attached as Exhibit 2.
58. CMS further asserted that the Commonwealth “must pay the full cost of administration of a program that does not comply with Federal law.” Ex. 2 at 2.
59. MassHealth makes eligibility determinations for married couples without regard to whether the marriage is between persons of the same sex or different sexes, as is required by the United States Constitution. As a result, married individuals in same-sex relationships who would qualify under federal law for Medicaid benefits but for the application of DOMA, are nevertheless covered by MassHealth. Because FFP is not available for expenditures relating to such individuals, under the MassHealth Equality Act, described above, the Commonwealth pays for the entire cost of MassHealth coverage provided to those individuals.
60. The Commonwealth has estimated that the annual amount of FFP that is unavailable due to DOMA is $2.37 million.
61. Additionally, because the United States Constitution compels MassHealth to treat similarly all individuals validly married under Massachusetts law, Massachusetts’s compliance with the Equal Protection Clause requires MassHealth to treat certain married individuals in
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same-sex relationships as ineligible for MassHealth coverage even though they would be eligible for Medicaid benefits if the federal definition of marriage were applied (and their marriages ignored).
62. Section 3 of DOMA creates an unconstitutional dilemma for the Commonwealth by requiring MassHealth to choose between, on the one hand, violating the Equal Protection Clause of the Fourteenth Amendment by applying DOMA’s federal definition of marriage in order to receive federal funding from CMS and, on the other hand, losing FFP for otherwise eligible individuals and risking enforcement for non-compliance by CMS if MassHealth continues to treat all married individuals equally in assessing MassHealth eligibility.
63. Marital status is also relevant to the operations of veterans’ cemeteries at Agawam and Winchendon, Massachusetts, by the Massachusetts Department of Veterans Services (“DVS”). These cemeteries are maintained for the burial of Massachusetts veterans, their spouses, and their children. The cemeteries are operated solely by the Commonwealth and are located on land owned by the Commonwealth.
64. These cemeteries were constructed, expanded, and improved through the expenditure of federal funding provided by the Defendant United States Department of Veterans Affairs (“VA”). 38 U.S.C. § 2408(b); 38 C.F.R. § 39.5. This federal funding is provided by a grant program administered by the VA’s State Cemetery Grants Service, which is a part of the VA’s National Cemetery Administration.
65. The State Cemetery Grants Program was created in 1978 to complement the service provided by the VA’s system of veterans’ cemeteries operated by the National Cemetery Administration. Through the combination of federal- and state-operated burial sites, the VA seeks to make a veterans’ cemetery available within seventy-five miles of the homes of 90% of
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the veterans across the country. United States Department of Veterans Affairs, State Cemetery Grants Program, http://www.cem.va.gov/scg/scgkit.asp (last visited June 19, 2009).
66. To be eligible for burial as a veteran in a Massachusetts veterans’ cemetery, an individual must satisfy federal requirements pertaining to military service and a state requirement of a sufficient connection to Massachusetts, such as having a home of record in Massachusetts or being a Massachusetts resident. United States Department of Veterans Affairs, Federal Benefits for Veterans, Dependents & Survivors at 59 (2009), available at http://www1.va.gov/opa/vadocs/fedben.pdf; Massachusetts Veterans’ Memorial Cemeteries, Interment Registration Instructions and Requirements for Agawam and Winchendon (Feb. 2002) at 2-3, available at http://www.ci.woburn.ma.us/documents/Veterans%20Office/MA%20 cemetary%20pre%20registration.pdf.
67. To be eligible for burial as the spouse of a veteran in a Massachusetts veterans’ cemetery, federal regulations require that an individual produce a marriage certificate and demonstrate that the veteran spouse is eligible for burial. Federal Benefits for Veterans, Dependents & Survivors at 59; Interment Registration Instructions and Requirements for Agawam and Winchendon at 2-3.
68. In operating and maintaining these cemeteries, the Commonwealth is required to comply with regulations promulgated by the Secretary of the VA. 38 U.S.C. § 2408(c).
69. The regulations contain the requirement that these cemeteries “must be operated solely for the interment of veterans, their spouses, [and] surviving spouses.” 38 C.F.R. § 39.5(a).
70. The VA can recapture from the Commonwealth any funds provided by the VA for the construction, expansion, or improvement of the cemeteries at Agawam and Winchendon if
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either is deemed to be no longer operated solely as a veterans’ cemetery. 38 U.S.C. § 2408(b)(3); 38 C.F.R. § 39.18(a).
71. The Commonwealth has received three federal grants for the Agawam and Winchendon cemeteries. In 1999, $6,818,011 in federal funds was provided for the construction of the Agawam cemetery. In 2003, $4,780,375 in federal funds was provided for the expansion of the Agawam cemetery. In 2003, $7,422,013 in federal funds was provided for the construction of the Winchendon cemetery.
72. Soon after Massachusetts recognized the right to marry for individuals of the same sex, DVS sought clarification from the VA as to how to comply with federal law. In response to this inquiry, the VA informed the Commonwealth that the “VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services at 1 (June 18, 2004), attached as Exhibit 3.
73. The VA further stated that, in light of DOMA, the cemeteries at Agawam and Winchendon “would not be operated solely for the interment of veterans and their spouses and children if [Massachusetts] allowed the interment of a person solely on the basis that the person is recognized under [Massachusetts] law as being the same-sex spouse of a veteran.” Ex. 3 at 2.
74. On June 4, 2008, the National Cemetery Administration published NCA Directive 3210/1, which states that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based
20

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 21 of 32
on being the spouse or surviving spouse of a same-sex veteran.” NCA Directive 3210/1 (June 4, 2008), attached as Exhibit 4.
75. Massachusetts veterans and their family members regularly apply for burial in either the Agawam or Winchendon cemetery far in advance of their deaths. DVS either preapproves or denies these applications by determining whether the applicants are eligible for burial in either of these cemeteries, based on the federally mandated and state-specific criteria described herein.
76. DVS treats identically the applications of married veterans in same-sex and different-sex relationships.
77. DVS has pre-approved an application for burial submitted by a Massachusetts veteran and his same-sex spouse. This same-sex spouse is not otherwise eligible for burial in a Massachusetts veterans’ cemetery.
78. The VA has taken the position that it has the authority to withhold federal funding from the Commonwealth due to the Commonwealth’s equal and identical treatment of married individuals in assessing eligibility for interment.
79. Section 3 of DOMA creates an unconstitutional dilemma for the Commonwealth by requiring DVS to choose between, on the one hand, violating the Equal Protection Clause of the Fourteenth Amendment by refusing burial of the same-sex spouses of Massachusetts veterans in a Massachusetts veterans’ cemetery and, on the other hand, risking enforcement for noncompliance by the VA if DVS continues to apply the state definition of marriage in assessing eligibility for burial in a veterans’ cemetery.
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Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 22 of 32
CAUSES OF ACTION COUNT ONE – VIOLATION OF THE TENTH AMENDMENT
AND CONSTITUTIONAL PRINCIPLES OF FEDERALISM (U.S. CONST. amend. X)
80. The allegations contained in paragraphs 1 through 79 are re-alleged and incorporated into this count as though fully set forth herein.
81. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government.
82. The Tenth Amendment ensures the division of powers between the states and federal government that is necessary for the dual sovereignty of the federal system.
83. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens.
84. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage.
85. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.
86. Enforcement of Section 3 of DOMA unconstitutionally commandeers the Commonwealth and its employees as agents of the federal government’s regulatory scheme and requires the Commonwealth to facilitate the implementation of a discriminatory federal policy.
22

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 23 of 32
COUNT TWO – VIOLATION OF THE SPENDING CLAUSE (U.S. CONST. art. I, § 8)
87. The allegations contained in paragraphs 1 through 86 are re-alleged and incorporated into this count as though fully set forth herein.
88. Article I, § 8 of the United States Constitution limits the power of Congress to attach conditions to the receipt of federal funds. One such limitation is that Congress may not exercise its spending power in a manner that induces a state to violate the constitutional rights of its citizens.
89. The Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.
90. Massachusetts recognizes a unitary status of married persons, irrespective of whether they are part of a same-sex or a different-sex couple. Section 3 of DOMA, as applied to the Medicaid statute, 42 U.S.C. §§ 1396 et seq., requires the Commonwealth to violate the Equal Protection Clause by treating married individuals in same-sex relationships and married individuals in different-sex relationships differently for purposes of determining eligibility for Medicaid benefits.
91. Section 3 of DOMA, as applied to the State Cemetery Grants Program, 38 U.S.C. § 2408, likewise requires the Commonwealth to violate the Equal Protection Clause by treating married individuals in same-sex relationships and married individuals in different-sex relationships differently for the purposes of determining eligibility for burial in a Massachusetts veterans’ cemetery.
23

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 24 of 32
92. None of the interests purportedly furthered by DOMA, as it applies to these programs, justifies discrimination against married individuals in same-sex relationships. Because all of these individuals are married under Massachusetts law, there is no basis for DOMA’s required differential treatment of same-sex and different-sex couples. As a result, DOMA, as applied to these programs, violates the Spending Clause.
93. Another limitation on Congress’s authority pursuant to the Spending Clause is that Congress may not attach conditions to the receipt of federal funds that lack a sufficient nexus to the purpose(s) advanced by the program’s implementation.
94. Medicaid funding is given to MassHealth for the purpose of providing healthcare coverage to low- and moderate-income residents of the Commonwealth.
95. CMS has mandated that MassHealth must disregard the valid marriages of samesex couples in order to continue to receive federal funds.
96. Veterans’ cemetery funding is given to DVS for the purpose of constructing and improving cemeteries that provide a convenient burial site for military veterans and their families.
97. The VA has mandated that DVS must disregard the valid marriages of veterans and their same-sex spouses in order to continue to receive federal funds.
98. Because there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by these programs, Section 3 of DOMA, as applied to these programs, violates the Spending Clause.
24

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 25 of 32
COUNT THREE – DECLARATORY JUDGMENT (28 U.S.C. § 2201)
99. As demonstrated by the allegations set forth in paragraphs 1 through 98, which are incorporated into this count as though fully set forth herein, there is an actual controversy of sufficient immediacy and concreteness relating to the legal rights and duties of the Commonwealth and the proper legal relations between the Commonwealth and the Defendants to warrant relief under 28 U.S.C. § 2201.
100. The harm to the Commonwealth as a direct result of DOMA is sufficiently real and/or imminent to warrant the issuance of a conclusive declaratory judgment usefully clarifying the legal relations of the parties.
PRAYER FOR RELIEF The Commonwealth of Massachusetts respectfully requests that the Court:
A. Enter an order declaring that 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples;
B. Enter an order declaring that 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples;
C. Enter an order declaring that 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples;
25

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 26 of 32

D. Enjoin Defendants and any other agency or official acting on behalf of Defendant the United States of America from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials;
E. Award attorneys’ fees and costs; and F. Grant any other relief that the Court considers proper.

Dated: July 8, 2009 Boston, Massachusetts
Tel: Fax: David.S.Fried

Respectfully submitted:
COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL
/s/ Maura T. Healey /s/ Jonathan B. Miller Maura T. Healey, BBO No. 640856 Jonathan B. Miller, BBO No. 663012 Christopher K. Barry-Smith, BBO No. 565698 David S. Friedman, BBO No. 635807 Assistant Attorneys General One Ashburton Place Boston, MA 02108
(617) 727-2200 (617) 727-5762 Maura.Healey@state.ma.us Jonathan.Miller@state.ma.us CBarry-Smith@state.ma.us
man@state.ma.us

26

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 27 of 32

Topic Federal Employee Benefits

ADDENDUM OF FEDERAL LAW REGULATING MARRIAGE

Citation 5 U.S.C. §§ 6382-6383

Effect on Marriage Most federal employees may use up to a total of twelve administrative work weeks of sick leave each year to care for a spouse with a serious health condition.

5 U.S.C. § 8133
5 U.S.C. §§ 8331, 8401; 5 U.S.C. §§ 8331(10), 8401(23)
5 U.S.C. §§ 8341(b)(1), 8442(a)(1) 5 U.S.C. § 8341(b)(1)
5 U.S.C. § 8442(a)(1)
5 U.S.C. § 8901(5)
5 U.S.C. §§ 8905, 8905a U.S. Office of Personnel Management, Death Benefits, http://www.opm.gov/retire/faq/po st/faq4.asp#family (last visited July 7, 2009) 5 U.S.C. §§ 8981-8992
Federal Retirement Thrift Investment Board, TSP Features for Civilians, http://www.tsp.gov/features/chapt er15.html (last visited July 7, 2009) FSAFeds Program, Summary of Benefits with Frequently Asked Questions, https://www.fsafeds.com/fsafeds/ SummaryofBenefits.asp#HCFSA (last visited July 7, 2009)

If a federal employee’s death resulted from an injury sustained in the performance of duty, the employee’s surviving spouse is eligible for compensation equal to a percentage of the employee’s monthly pay. The compensation for a surviving spouse is paid for life, unless he or she re-marries before the age of fifty-five. Federal employees with permanent appointment are eligible for retirement and disability benefits under either the Civil Service Retirement System (“CSRS”) or the Federal Employees Retirement System (“FERS”). Both CSRS and FERS provide survivor benefits for the spouse of a deceased federal employee or retiree. Married federal employees who retire under either CSRS or FERS receive a joint and survivor annuity. Under CSRS, the surviving spouse of a federal employee is eligible for an annuity equal to 55% of the retirement benefit that the deceased employee had accrued at the time of death. Under FERS, the surviving spouse is eligible for a lump-sum survivor benefit equal to one-half of the employee’s annual basic pay plus a lump-sum payment. Spouses of federal employees can obtain health insurance through the Federal Employees Health Benefits Program (“FEHB”) as a member of the employee’s family. Spouses who survive a deceased federal employee who was enrolled in the FEHB may continue to participate in that program at the same cost as a federal employee if, prior to the employee’s death, the spouse was covered as a family member under the plan.
Spouses of federal employees can obtain dental insurance and vision benefits as a member of the employee’s family. Under FERS, federal employees participate in a Thrift Savings Plan. The employee’s spouse has the right to consent before money is borrowed from the account as well as to approve withdrawal.
Spouses of federal employees can participate in the employee’s Health Care Flexible Savings Account.

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 28 of 32

Topic Federal Employee Benefits
Bankruptcy
National Housing Act Consumer Credit Protection Act Copyright Education Loans
Tax

Citation U.S. Department of Labor, Employment Standards Administration, Division of Federal Employees’ Compensation, CA-11, http://www.dol.gov/esa/regs/com pliance/owcp/ca-11.htm (last visited July 7, 2009) 11 U.S.C. § 302 Administrative Office of the United States Courts, Bankruptcy Basics (April 2006), http://www.uscourts.gov/bankrup tcycourts/bankbasics0908.pdf 11 U.S.C. §§ 507, 1328
12 U.S.C. § 1701j-3(d)(6)
15 U.S.C. §§ 1673(a), (b)(2)
17 U.S.C. § 203(a)(2)(A) 17 U.S.C. § 304(a)(1)(C)(2) 20 U.S.C. § 1087e(e)(2)
20 U.S.C. §§ 1087nn(a), (b)(1), (b)(4), (b)(7); 20 U.S.C. § 1087vv(d)(5)
20 U.S.C. § 1087oo(a); 20 U.S.C. § 1087oo(f)(1)
26 U.S.C. § 1 26 U.S.C. § 105
26 U.S.C. § 106

Effect on Marriage If a federal employee becomes disabled from a work-related injury, the employee is paid one-third of his or her salary if he of she has no dependents, but three-quarters of his or her salary if he or she has dependents. A spouse can be considered a dependent.
Spouses are permitted to file jointly for bankruptcy protection. The ability to file jointly allows creditors to file only one claim and the married couple to pay only one filing fee.
A former spouse of a debtor making a claim for payments required as part of a divorce or separation agreement is given a higher priority than some other creditors. Banks sometimes utilize a due-on-sale clause in mortgage agreements that permit them to declare a loan payable in full if the borrower sells the property without the bank’s consent. Use of a due-on-sale clause is prohibited in cases of transfers of residential property from one spouse to another. Up to 25% of a person’s disposable weekly earning can be subject to garnishment, but if the purpose of the garnishment is to enforce an order for the support of any person, including a spouse or former spouse, the maximum that can be garnished is 60%. When an author is dead, his or her right to terminate the licensing of a copyright may be exercised by the author’s surviving spouse. A surviving spouse is entitled to the renewal and extension of a copyright for a further term of sixty-seven years. Various federal student loans are eligible for income contingent repayment. If the borrower is married, the repayment schedule is based upon the adjusted gross income of the borrower and his or her spouse. Eligibility for federal financial assistance for education is determined based on information provided in the Free Application for Federal Student Aid (“FAFSA”), which requires identification of a student’s marital status as well as information about the available income, assets, and additional expenses of the student’s spouse. A student is considered an independent applicant if he or she is married. The expected family contribution of any dependent student includes consideration of both parents’ income and assets if the parents are married. If a student’s parents are not married or are divorced, parental contribution includes only the income and assets of one of the parents. Spouses are permitted to file a joint federal tax return. A healthcare flexible spending account, which is exempt from income tax, can be used to pay for medical expenses of an employee or a spouse. When a married employee receives employer-provided health benefits, the value of the health insurance for the employee’s spouse is not considered taxable compensation to the employee.

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Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 29 of 32

Topic Tax
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) Employee Retirement Income Security Act (ERISA)

Citation 26 U.S.C. § 163(h)(3)
26 U.S.C. § 213
26 U.S.C. § 215(a)
26 U.S.C. § 219
26 U.S.C. § 401
26 U.S.C. § 1041
26 U.S.C. § 1211(b)(1)
26 U.S.C. § 2056(a)
26 U.S.C. § 2603; 26 U.S.C. § 1041; Internal Revenue Service, Frequently Asked Questions on Gift Taxes, http://www.irs.gov/businesses/sm all/article/0,,id=108139,00.html (last visited July 7, 2009) 26 U.S.C. § 6013(d)(3)
29 U.S.C. § 1166(a); U.S. Department of Labor, Continuation of Health Coverage, http://www.dol.gov/dol/topic/heal th-plans/cobra.htm (last visited July 7, 2009) 26 U.S.C. §§ 401(a)(11); 401(a)(17)

Effect on Marriage Taxpayers are limited to $1,000,000 in mortgage interest deductions for acquisition indebtedness and $100,000 for home equity indebtedness on either a joint return or a single return; married taxpayers filing individually are limited to $500,000 for acquisition indebtedness and $50,000 for home equity indebtedness. Married couples filing jointly may pool deductions, such as the deduction for certain uncompensated medical expenses. Alimony payments are excluded from the taxable income of the spouse making alimony payments. An employed spouse is permitted to make an Individual Retirement Account contribution on behalf of a non-working spouse or a spouse who has little income. Spouses receive preferential treatment in retirement savings and use of retirement funds. The transfer of property (including retirement funds) to a spouse, or to a former spouse incident to a divorce, is not a taxable transfer. Taxpayers are limited to a $3,000 net capital loss deduction on a joint or single return; married taxpayers filing individually are limited to a $1,500 net capital loss deduction. The value of the taxable estate is determined by deducting the value of any interest in property that passes or has passed from the decedent to a surviving spouse. An individual can give another individual who is not a spouse no more than $13,000 in a calendar year without having to file a gift tax return. There is no limit on the amount one spouse can give another.
Spouses have joint and several liability for the income tax on a joint return unless innocent spouse relief applies. If an employer chooses to provide an employee and his or her spouse with healthcare coverage, COBRA requires the employer upon termination of employment to offer the employee’s spouse the opportunity to continue their healthcare coverage for a prescribed period, provided that the spouse pays the applicable premium.
Pension plans are required to provide spouses with certain protections, including a Qualified Preretirement Survivor Annuity while the employee is working and a Qualified Joint and Survivor Annuity at retirement.

26 U.S.C. § 401(a)(11)(B)(iii) 26 U.S.C. § 417(a)(2)
26 U.S.C. § 417(a)(4)

Under a profit-sharing plan, a spouse is the automatic beneficiary of the employee’s benefit, unless waived by the spouse. An employee must obtain his or her spouse’s approval to waive a Qualified Joint and Survivor Annuity or a Qualified Pre-retirement Survivor Annuity. An employee must obtain his or her spouse’s approval to use his or her accrued pension benefit as a security for a loan.

3

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 30 of 32

Topic ERISA

Citation 29 U.S.C. § 1055

Effect on Marriage Defined contribution plans, such as 401(k) plans, pay the account balance to the designated beneficiary if the participant dies. The employee’s spouse is the automatic beneficiary upon the employee’s death, unless the employee has specifically designated someone else.

Family and Medical Leave Act Veterans Benefits

29 U.S.C. § 1056(d)(3); 26 U.S.C. § 401(a)(13)(B)
29 U.S.C. § 2612(a)(1)(C)

Benefits from a retirement plan subject to ERISA may not be pledged, attached, levied upon or awarded by a court to another private party. One major exception is divorce proceedings, where the retirement assets may be viewed as marital property. Federal law permits benefits to be awarded to a former spouse through a Qualified Domestic Relations Order. Requires covered employers to offer employees up to twelve weeks of unpaid leave to care for a spouse.

38 U.S.C. § 1115
38 U.S.C. §§ 1121, 1141
38 U.S.C. §§ 1158
38 U.S.C. §§ 1311, 1317
38 U.S.C. §§ 1701, 1781
38 U.S.C. § 1722
38 U.S.C. § 1901
38 U.S.C. § 2402
38 U.S.C. §§ 3500, 3501, 3511, 3512, 3534
38 U.S.C. § 3701(b)(2)
38 U.S.C. § 3704(c)(2); U.S. Department of Veterans Affairs, Pre-Loan Frequently Asked Questions, http://www.homeloans.va.gov/faq preln.htm (last visited July 7, 2009). 38 U.S.C. § 4215; 5 U.S.C. § 2108 38 C.F.R. § 39.5(a)

Veterans who have at least a 30% disability are entitled to additional disability compensation if they have dependents. For this purpose, a spouse is considered a dependent. A surviving spouse of a veteran is entitled to receive a monthly pension if the veteran’s death was service connected. A veteran’s spouse may receive compensation if a veteran disappears. A surviving spouse of a veteran is entitled to receive monthly dependency or indemnity compensation payments if the veteran’s death was service connected. The spouses of certain veterans are entitled to medical care provided by the government. In determining, based on income and assets, whether a veteran has the ability to defray necessary home care and medical expenses, the property of the spouse of the veteran is included as an asset of the veteran. Spouses of veterans may be beneficiaries of National Service Life Insurance. Spouses of veterans are eligible for interment in national cemeteries if the veteran is eligible. The surviving spouse of a veteran who died of a service-connected disability is entitled to educational assistance for up to 45 months and to job counseling, training, and placement services. The loan guarantee benefit extends to surviving spouses of veterans who died on active duty or as a result of a service-connected disability. Loans guaranteed by the U.S. Department of Veterans Affairs assist eligible veterans in the purchase of a home by protecting private lenders against loss if the veteran fails to repay the mortgage. The guarantee requires that the veteran certify an intent to occupy the property, but if the veteran is in active duty status and unable to occupy, the veteran’s spouse can fulfill the occupancy requirement.
Surviving spouses and certain spouses enjoy certain preferences in federal employment and job training. Spouses of veterans are entitled to interment in state-operated veterans’ cemeteries if the veteran is eligible for burial.

4

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 31 of 32

Topic Medicare
Medicaid
Social Security

Citation 42 U.S.C. § 1395i-2
Centers for Medicare & Medicaid Services, Medicare and You 2009, CMS Publication No. 10050 (Sept. 2008), http://www.medicare.gov/Publica tions/Pubs/pdf/10050.pdf
42 U.S.C. § 1396r-5(b)(1) 42 U.S.C. § 1396r-5(d)
20 C.F.R. §§ 416.1160, 416.1202 42 C.F.R. § 433.36(g)(3)(i) 42 C.F.R. § 433.36(h)(2)(i) 42 U.S.C. § 402(b), (c)
42 U.S.C. § 402(b), (c)
42 U.S.C. § 402(e), (f)
42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390 – 404.391 and § 404.347
42 U.S.C. § 1382
42 U.S.C. §§ 1382a, 1382b; Social Security Administration, Understanding Supplemental Security Income, http://socialsecurity.gov/ssi/textincome-ussi.htm (last visited July 7, 2009)

Effect on Marriage Marriage allows an ineligible individual who has never worked or who has not worked long enough to qualify for free hospital insurance based on his or her spouse’s work record. Once a person qualifies for Medicare Part A (hospital insurance) – including by qualifying on the basis of his or her spouse’s eligibility for Medicare Part A even though he or she would not independently qualify – he or she can enroll in Part B (medical insurance) by paying a monthly premium. Anyone enrolled in both Medicare Part A and Part B may enroll in Part C, which provides additional benefits. When a person receives coverage under Medicare Part A, Part B, or Part C, he or she is eligible to receive prescription drug coverage under Part D by paying a monthly premium. The income of a spouse is not deemed available to a married Medicaid applicant receiving institutionalized care. After an institutionalized spouse is determined to be eligible for medical assistance, in determining the amount of the institutionalized spouse’s income that is to be applied monthly to payment for the costs of care in the institution, a community spouse allowance is to be deducted from the institutionalized spouse’s countable income. The income and assets of a spouse are deemed available to a married Medicaid applicant. A state cannot place a lien on an institutionalized Medicaid recipient’s property if the member’s spouse is living in the home. A state can recover payments from the estates of deceased members. This recovery must be deferred when there is a surviving spouse. If a worker is eligible for federal disability benefits, a spouse and/or a divorced spouse may qualify for up to 50% of the disabled worker’s benefit amount. When both members of a married couple are retired and collecting Social Security benefits, the lower-earning spouse can increase his or her benefit by up to one half of the higher-earning spouse’s payment. After a worker’s death, a surviving spouse and/or ex-spouse may receive the worker’s higher benefit, instead of his or her own benefit, as long as the spouse is at least sixty years old, was married to the worker for at least nine months, and is not currently married to someone else. A surviving spouse is entitled to a one-time lump-sum death benefit of $255 if the surviving spouse was “living in the same household with the deceased at the time of death,” if the surviving spouse applies for the benefit “prior to the expiration of two years after the date of death …,” and if the deceased spouse was “fully or currently insured” at the time of death. When two eligible individuals are spouses who live together, only one is eligible for Supplemental Security Income benefits in a given month. For purposes of determining eligibility for Supplemental Security Income benefits, the resources of a spouse are deemed to be those of the applicant as well, with certain limited exclusions.

5

Case 1:09-cv-11156 Document 1 Filed 07/08/2009 Page 32 of 32

Topic Public Safety Officers Benefit Program
Child Support Enforcement
Older Americans Act Railroad Retirement Act
Federal Court Privileges
Health Insurance Portability and Accountability Act (HIPAA)

Citation 42 U.S.C. § 3796; Bureau of Justice Assistance, Public Safety Officers’ Benefits Program, http://www.ojp.usdoj.gov/BJA/gr ant/psob/psob_main.html (last visited July 7, 2009) 42 U.S.C. § 3796d-1; 38 U.S.C. § 3532; Bureau of Justice Assistance, Public Safety Officers’ Benefits Program: Education Assistance Benefits, http://www.ojp.usdoj.gov/BJA/gr ant/psob/psob_education.html (last visited July 7, 2009) 42 U.S.C. §§ 659, 660
42 U.S.C. § 3030g-21
45 U.S.C. § 59
45 U.S.C. § 231a(c)
45 U.S.C. § 231a(c)(2)
Trammel v. United States, 445 U.S. 40 (1980) Blau v. United States, 340 U.S. 332 (1951) U.S. Department of Labor, Portability of Health Coverage, http://www.dol.gov/dol/topic/heal th-plans/portability.htm (last visited July 7, 2009)

Effect on Marriage If a public safety officer dies in the line of duty, his or her spouse is entitled to death benefits. As of October 1, 2008, the benefit amount is a one-time payment of $315,746.
If a public safety officer dies or is permanently disabled in the line of duty, his or her spouse is entitled to payment for education expenses, including tuition and fees, room and board, books, supplies, and other education-related costs. As of October 1, 2008, the maximum award for a full-time student is $915.00 per month of class attendance.
The federal government assists in enforcing the support obligations of parents to their children and the spouse with whom the children are living. Federal courts have jurisdiction to hear enforcement matters, and the federal government withholds payment due to an individual if that individual owes child support. Nutrition services, including congregate and home delivery meals, are provided to older individuals (age sixty and over) and their spouses, irrespective of the spouse’s age. 45 U.S.C. § 51 creates liability for injuries to employees due to railroad negligence. Any right of action given to a person suffering injury survives to his or her personal representative, for the benefit of the surviving spouse. Spouses of railroad workers are entitled to retirement and disability annuities to which railroad workers are entitled. An annuity may also be payable to the divorced wife or husband of a retired employee if their marriage lasted for at least ten consecutive years, both have attained age sixty-two for a full month, and the divorced spouse is not currently married. In federal courts, under the testimonial privilege, an individual cannot be compelled to testify against his or her spouse. In federal courts, confidential communications between spouses are privileged. The privilege can be asserted by either spouse. Special enrollment rights allow spouses of a covered employee to enroll outside of a group plan’s open enrollment period.

6

Case 1:09-cv-11156 Document 1-2 Filed 07/08/2009 Page 1 of 4 Exhibit 1

Case 1:09-cv-11156 Document 1-2 Filed 07/08/2009 Page 2 of 4

,\-""1"~.....- ~(,
DEPARTIIENT OF HEALTH & HUMAN SERVICES Centers f~r Medicare & Medicaid Seivices JFK Federal Building, Government Center Room 2325 Boston, Massachusett 02203 617-565-1188
Office of the Regional Admiustrator / Region I

C~S'
Ccíi.r£r7., tor ;t~'IICA/I'E J~ 'l1EDlCiJ10 jï:7t7tlia¡s

May 28, 2004

Knsten Reasoner Apgar

General Counsel

The Commonwealth of Massachusetts

Executive Offce of

Health and Human SerVices

1 Ashburon Place, Room 4409

Boston, Massachusetts 02408

Re: lrplementation of Go.odridZ§ decisiQ.U

Dear Ms. Apgar:

This is in response to your letter of

March 22,2004 to Brian Cresta regarding issues arsing from

the Goodridge decision and parcularly how that decision interacts with the Federal Medicaid Health and Human Services does not provide legal
statute. In general, the Deparment of

opinions. However, we certaiy want to help the Commonwealth avoid potential conficts with

Federal matcmng fuds.

Federal

law, which could result in loss of

You are undoubtedly aware that under
199; 1 U.S.C. § 7,

the Defense of

Marage Act (DOMA), Pub. L. No. 104~

In determining the meaning of any Act of Congress . . . the word "marrage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex Who is a husband or a wife.

In large.par, DOMA dictates the response to your seven questions which we will answer below.

In

short,

the

DOMA

does

not

give

the

Cènters

for

Medicare
the

& Medicaid
Federal portion of

ServiceMs (eedMicSai)dt.he

discretion to recogne same~sex marage for puroses of

i, If the state determes that the applicant spouse in a same-sex marage is not eligible for Medicaid, but the applicant would be eligible if not marred, would the state's denial of Medicaid benefits violate Federal Medicaid law?

Yes. If the applicant is eligible for medical assistance under the state plan approved under title xix, the state must provide medical assistance to the applicant or be in violation of Federal Medicaid law. If, for example, under state law the applicant is ineligible because his same sex spouse has income or resources which are deemed to him thereby making him ineliingcibolme,ethainsd
deeming would not be permitted under the Federal Medicaid statute. Deeming of
resources is only pemiitted between spouses, as defined by DOMA, or from a parent to a minor

Case 1:09-cv-11156 Document 1-2 Filed 07/08/2009 Page 3 of 4

"::':".,L:

, ~.

~'/"tl'~

law. . or disabled child. Because a same sex couple are not spouses under Federal

law, the deemed

income or resources which would result in the applicant's ineligibility cannot be recognized

under Federal

2. Conversely, if

the state determes that the applicant spouse in a same-sex mariage is

eligible for Medicaid, but the applicant would not be eligible, if not-maried (for example,

where the spouse's medical expenses are counted to meet applicant's deductible or

spenddown), would FFP be available on the state's expenditues for the applicant spouse?

No. If the reason that the applicant is eligible under the state's determnation is the state's
treatment of the same sex parner as a spouse, FFP would not be available in the state's
expenditures for the individual. The individual may be eligible for a state only medical assistan.ce benefit.

3. Similarly, if the state treats the same-sex spouse .of an institutionalized applicant as the
"community spouse" under the "spousal impoverishment" rules, and detennes that the . institutionalized applicant is eligible for Medicaid when the applicant would not be eligible if not married, would FFP be available on the state's expenditues for the institutionalized individual?
If the applicant would be ineligible if he or she were treated as being unmaried, no FFP would be available in.the state's expenditues for that individuaL. The spousal impoverishment
community spouse. Under
protections only apply to an institutionalized individual with a
DOMA a same sex couple would not qualify as an individual with a spouse.
4. Under Federal Medicaid law, a trst established by the spouse of an institutionalized Medicaid applicant is considered to be established by the applicant. If the same-sex spouse of an institutionalized Medicaid applicalt establishes a trst, may the state, in détermning
Medicaid. eligibilty, consider the trst to be established by the institutionalized applicant?
Not in their capacity as a spouse; however,.the rule under which a trust wil be considered to be established by an institutionalized individual also applies when an individual other than a spouse
establishes the trst. The institutionalized individual wil be considered to have established the
trust if his or her assets were used to form all or pait of the corpus of the trust and another individual wllo has the lega. authority to act in olace of or on behalf of the individual establishes the trust. Whether a paricular individual has the legal authority to act in ths capacity for the institutionalized individual is a matter of state law.
5. Under federal Medicaid law, if an institutionalized Medicaid applicant tranfers assets for less than fair market value to the applicant's spouse (or for the spouse's benefit), the transfer does not result in a penalty. If an institutionalized Medicaid applicant transfers assets for less than tàir market value to his same-sex spouse, may the state treat the transfer as a permissible transfer that results in no penalty?
No. The provision governing asset transfers would not apply in the context of a same sex spouse since under DOlVIA that individual is not a spouse.

2

Case 1:09-cv-11156 Document 1-2 Filed 07/08/2009 Page 4 of 4

'...1 ','J,I'"

6. Where all federal Medicaid requirements for placing a real estate lien otherwise are present, may the state opt not to place a lien, so long as the same-sex spouse is lawflly residing in the home?

Each state follows its own laws or regulations on imposition of

Hens and on estate recoveries

within Federal guidelines. Federa1language which restricts imposition of liens or adjustment or

recovery in tl!e case of a lien unti afer the death of the suriving spouse would not apply to the

. surviving member of a same sex couple. However, while imposition of a lien on real propert is

optional, estate recovery from real propert subject to a lien is mandatory.

7. Where the state otherwise has a claim inder federal Medicaid law against a deceased the
recipient's estate, may the state opt not to require repayment until afer the death of
suiving same-sex spouse? If repayment would otherwise be required under federal
Medicaid law, may the state amend its undue hardship criteria, so as to waive repayment until after the death of the surviving same-sex spouse?

Again, each state follows its own laws and regulations on estate recovery, consistent with Federal guidelines. DOMA, of course, effectvely prohibits the recognti?n of same sex spouses.

I hope this information is helpful as Masachusetts considers its response to the Goodridge decision.

Sincerely,

ç...

(!ll.ß...¿ C. t"f-CZ¿)-~~l?¿-.-!--(;,
Charlotte S. Yeh, MD, F ACEP
Regional Adminstrator

3

Case 1:09-cv-11156 Document 1-3 Filed 07/08/2009 Page 1 of 3 Exhibit 2

Case 1:09-cv-11156 Document 1-3 Filed 07/08/2009 Page 2 of 3

DEP AR1Mr-H' OF HEAL'I & HU1AN SEJVICES Centers for Medicare & Medicaid Services
JFK Fed"ral Building, Governent Ccnler Room 2275
Boston,. Massachuset 02203

":'
~: ,;"
. ~.; ~'.!.:~ -:"; ~:';: : ' : ; ":.,;. '-;. :' .:'.' ~";':ï: '¡'.~ì"'. ~';~"~;~ : :1: ,"0'; ',rd' d:!.
a/(lFNS h~ tj~S;fUlE ~ ltftl;"lLA/O rûlvrCE

Division of Medcaid and Oidr's Heth Opti / Bo Region Ofce

August 21,2008

JudyAn Bigby, M.D., Secretar

Executive Offce of

Health

and Human Services

One Ashburton Place

Boston, Massachusetts 02108

r21 :~. ":"'¡ t:~ ~ \.~ ,:,' ':'::':' -.~!
I.
~.. ,.
t.: t:.J' h ~ ;¡ ~'. 2 t l' ~~.~~ .'

Dear Dr. Bigby:

We understand that recently the legislature passed and the Goveror signed an Act Relative to
Equality in the MassHealth Program. This Act (Chapter 217 ofthc Acts of2008) amended Chapter 1 I 8E ofthc General Laws by adding §6L This section provides that notwithstanding

the unavailability of

Federal fiancial paricipation (FFP), no person who is recgnized as a

spouse under the laws ofthe Commonwealth shall be denied benefits that are otherwise available

under this chapter due to the provisions of 1 U.S.C.' § 7 or any other Federl non-recognition of

spouses of

the same sex.

We are ~nclosing a copy ofa letter we wrote to Kristen Reasoner Apgar on

May 28,2004,

conc(:ming the implcmentatioiiofthe Goodridge decision and the

Defense of Marriage Act

(DOr.tA), Public Law No, 104-199, 1 U.S.C. § 7. i We thought YOll would be attempting to

implement the Goodridge decision in MassHealth in accordance with the guidance we provided

you in that letter. Apparently, the limitation on FFP prevented you from doing so without

legislative approval. Your current law seems to aàdress thi.

As òur May 28, 2004

letter ìndicated, anà as your new State law appears

to recogne, DOMA

applies to all Federally funded program including Medicaid. DOMA limits the availability of

FFP by precluding recognition of same sex couples as "spouses" in the Federal program

DOMA also preclucies the State from narowing Federal Medicaid entitlements by considerìng

individuals as spouses who would not be spouses under Federal

law.

lDOMA provides that iii determining the meaning of any Act of Congress, or of any mling,
rcgulation, or interpretation of the various administrative bureaus and agencies of the 'United
State, the word "mariage" means only a legal union between one man and one woman as
husband Or a wife. ' husband and wife, and Ùle word "spouse" refers only to a person of the opposite sex who is a

- --' - ,. - -~- --- Case 1:09-cv-11156 Document 1-3 Filed 07/08/2009 Page 3 of 3

Page 2 ~ JudyAnn Bigby, M.D., SecretaTY

All Federal funds, including Title XLX (and Tite XXI) funds, used to re:irburse the State for benefits or administrative costs, arc covered under DOMA. You must pay the full cost,

including the cost of administration, of a program that does not comply with Federal

law. To

assiire there is no conf1ìct and for MassHcalth to remain in compliance with all applicable

Fcdcrallaws, you can elect to set up a separate State financed and administered program in

which no Federal funds are used if

the State believes that long-ter cae or any other Medicaid

benefits in the form of spousal protections might be provided as a result of a same sex marage

under State law. Or, you can elect to apply your same sex rnairíage law in the context of

MassHealth, as long as you separately identify IDy serice ard administrative expenditures that

result from the difference between your defiition of

spouse and the DOMA definition and do

not submit any claims for :FFP fòr those expenditures.

In addition, you cannot use State law to deprive anyone ofFcdcral entitlements in those

progranls by considering individuals who would not be spouses under Federal law to be spouses

iii MassHcalth pursuant to State law. For example, under the Medicaid statute, deeming of

income and resources is only pertted between spouses as defined by DUMA. Therefore,

because same se~ couples are not spom;es u~der r.',~deral law, thp income and resources of one

may not be attributed to the of

her wrtout actual contribution, l,c, you mù:;r i10 deem income or

resources from one to iJ 0"t!ler.

\\'e would like to meet \vith you and your staff

within the next several weeks to ,discuss

implementation of

the Goodridge decision and your planned implementation of

the new §61 of

Chapter I i 8E of

the General Laws, Allen Bryan \viII be contacting appropriate stnifto set up a

date and time for a meeting, Besides Mr. Bryan, Nancy Ncmon, Irvin Rich, and

I wil attend.

Please contact AIle!1 8r)/an if ymrlmvt; Hì)r~rlI''t~,before the meeting. tIe can be
reached at (617) 565-1246.

~1JLr Sincerely,
Richard R. McGreal Associate Regional Administrator

Enclosure

Case 1:09-cv-11156 Document 1-4 Filed 07/08/2009 Page 1 of 4 Exhibit 3

-,,- '. ~

Case 1:09-cv-11156 Document 1-4 Filed 07/08/2009 Page.2ll of 4

DEPARTMl:NT OF Vf:TERANS AFFAIRS

Offce of the General Counsel

Washington DC 20420

wnW8&

GM.es. Jnoaen rE.aQIlÇohriCorounsel .

In Reply Refer To:

022

Massachusetts Department of Veterans' Services 600 Vvashinglon Street, Suite 1100
BostOn, MaSsephusetts 02111

Dear Ms. b'Conhor:

. .1 am'

responding to YO,urMarch30, 2004, letter to pepartment of

(VA)Reglçmal Counsel Ed.ward ~.~.Lukeyconaerning,lmpJèmèntation ofVtheèt.edreacnissioAnf.fóafirs

' the. Supreme Jy.d,icJal Coun of Massachusettsd'in 'GOodriqgev. Departmen.tof Públie

Wélfaie. 4.0 Màss. '30e (2003),whlch,generafly helg, thaUhe'Massaqhusètt

.Constitutiòn pròtects same-sex

marriages. Specffcelly, y()ur Jettéfåsks whether the

'Massac;husE!tls -Depa.rtmentof Vète!Jm~' ServjFes (DVS) may
sppuse of a veteran in Its Agawam .or ,Winchendon ,state veterabnusryctehme estaemryew-sitehxout

10singF~~,eraliundjng pr9vided unger YA's~tate" cémetery'g~l)ts progr~m, As J explain

In graatEft detaJIt:bè/òw, wecpe/ieve;VA Yiould be,entitl.eddtorecaptu.rë Fed~æl;g.ant

funds,pròvidedto-,OVSfQr 'eifher of those. cemetenes'sno,uía ~pVS 'declde;lQ bury the

~ ;,"' ... .. ". - . _. . . _. ,._. ", same-sexsppLlse ofa veteran:inthe,cemet~iyj unless that individuallsindependentfy
el~gible.forbiJrfãl oQ.sçme basis,oth.er tnanpeiñgthe Spouse oftheyeteran.

Sectio';2408(b)(3)oftitl,e'S8, United,StatE!sCp~é;eproviqes that ttìè United
States shall be entitled to. recover state cemetery.grånt funds if a state "ceases to .' ,operateJa VA-:fundødlcemetery as_ã veterans' pemetery:" Congress did not define
"vetèjåns' cerñetery" in se~tián 2498;öute~pressly.auJhoxlzed tlie,Secretåry of Veteians;'AffairEltoesta~astï regalations"gover,n.ilJg'.thê conditió~ forstâ,tè cemetery

grantawards. S,e~ 38 U.S.C.,§ 24Q8(c). Pursiiant to thls statutoiy
Secrétary prc:mïl.g~te,d regulatlon.s that;condJtion,g~~,nteligibilty uRoa ni.tnoaritpy, eratintghea

ceriete,. IIsõlely for

the iritenrient 'pf veterans~ their wives; husb~:mês,'survivlng

sP9use~. minor:2i;lidren,eQdu~~iiTrjeâ aqHtt aliildfen who 'Afm~physicallYdQr mentally

disablecrdandincapaJ:~le of self:.sùpport." ,See ,38 C.E.ad§.aa.2(à)(2003).VArecently

. môdifi~d ftsreg~latjóns to provide, 'srnopgcQthertlìinQ.8,tlietta Stete veterans' 'cemetery

musf bè9pérat~d soi~iyfpr the Jntermeht .of vetert:ns~ Jhe.itsppus.es,
spouses," C:r'dcertain children tobeeligible for funding underthe statesucrevimvientgery grants

lpRirsoegprgàornuu.lsSaeeeti,o" nItsi,sh'Ce13e8eC.neF.eRr.Jv§reÇ39r.)5min(2pt0h0l4ue).dir.eCdoamqméoflnnimtAiolethnaoungohifnPtahgrteO~'9wthoroa~t ptf,isos"ew'wiftieotl.relâll.'sShld8ise, oCsaconrdibd.ee/' oaåfnpFdeerdseornal
wlîo is lImarried" to á veter~rri. . .~.

Case 1:09-cv-11156 Document 1-4 Filed 07/08/2009 Page 3 of 4 2.

Ms. Jbán'E. O'Connor

Urider Federal

law, "marriage" does n'ot include being tHe wife, husband, or '

sp?use of a person of the same sex. Section 7 of tile 11. United.

States Code; provides:

In determining the meaning of any Act of Congress, or of any ruling,

, regulation, or Interpretation of the various administrative bureaus and

agencies of

the United Stfltes, the word Ilmarrlageil rteans only a~legal

union' between one man and one woman

as ,husband and wife, and .the

, wordllspouseH refers only to a person of the opposite sex who is'8

husband or a wife.

This FederaÎ law.governs the Sec~tai''s determination ,of whether a state cemeterY Is
being operatepil1 accordance \\i'h VA regulations. Unqer fOrmer section' 39.2(a)ana curreTlt section 39.5. a state. cemetery would npt be oPcereteg,eolely for ttié interment of
veteiansEmdthelr spouses al1d cnildren if it allowed the interment of a"persoli solely' oli
the basis thafttiepers~n is,re.c09iii~ed uriòer state Jaw,as belng,the same-sex spouse

. of avetersn: The United States Government would have discretion to

invoke the

recapture pr~vlslons of 38 U.S.G. § 2408(b)(3):~hpul~oOVS. decicje toauthorlzethe,

Interment of same-sex spouses at t~e.A9awam',~r Winchendon cemetery.

, .' 'VYhiJe ~e beli,eve section 2408 would entitle the Lfnited States to recapture
ie. . . - cemeterý~grant funds if a.grantee permltted the bürjåI ofveterans' same~sex spouses,
whether the Govemrnent,svQl'ld assert súr.h claims',v(oulçl..;.ea.e,nd HPon the policies, of
. the '. ..,~ ~i -t. .N...';-'._-- executive branch OffciãÎs -in~6ñicb' a¡ the tin ,.,' ..- .'.. '. .,i-~, - -~.---- - - .;'" _

, Ybur letter states that DVS. receìves VA grlints only under thè' state ceiietery

grants program. Nonetheless,you'ask.whetherthe same-sex spouse of a veteran

would be entitled to, receive the benefit 'of any other grants that VA ma~ provide to DVS

in the future for the assjstanqeofvete(ans and

their spo,uses. .Nou.shouldQe aware that

'the' Goodrigge q~cislqn ~~al'e iniPIic,aticms fClr t~eJHoIY9ke,;can..qhelsea Soldiers'

Homes. VA provides~gránts to~tàtes'to 'assist

in, the acquisltiDn,consìrLÌctlon, tiila

. ll3;;lovatJon of.State.veterans' h(jrnes:StatesrhList verifyt.bat(Dõf'rnore~nän 25. percent
. of ahome'sfeaiQents'willJ.e~p.Pj~etêrans tq"qùalifyJor'F~gera~ralitfuhds. See 38

u.s.b. § ~135(a)(4). VA h~s'iong lrierpreted this

as requir.hgthat nOr1,,veteran

Jaw

residents"

of stäte veterans. homes be;either veterails' spouses orparents'òf certain'

deceas.ed. veterans. Admission of saTe-sex spouses of veterans trigQWbe::~.pivisiori f~.r these

grants

,,\fould Drobablv not
in 3S U.S.C.§..i-36whfèfl1íuinmlzes

reçapture If

a home ceasésto'be operat~d prinaìpally for ,furnishing care to

veterans.

'However, VA's lriterpretationof section8~35 woLilq rendeftl'e Hplyoke and Chelsea

Soldiers' Homes ineligible for fúture grants if those homes admitted the same-sex

spouses of veterans.

As you know, VA also provides ,Pe.uJlem O.!à~n:H::nts to Massachusetts to help defray the cost of hospital, nursing home, and dotnicHiary c~re provided to veterans in the Holyoke and Chelsea Soldiers' Homes. Statè holTes must meêt the standards . prE-'scribed by VA to receive per dÎem payments. 38 U.S.C.§ 1742(a). Ttíese

Case 1:09-cv-11156 Document 1-4 Filed 07/08/2009 Page 4 of 4

3.

. - : - .
Ms. Joan E..O'Connor

standards require that all non-v8.teran nursing hom~ .rsidents receiving care in state veterans' homes be either veterani:'_~m.9L!.ees or parents of certain deceased veterans. See 38 C.F.R. § 51.210(d)., VA manuai provìsionsîmpose the same requirement upon state veterans' home facflities for per ~iem payments for próvislon of hospital ánd

domicilary care. For the reasons described above in ou(dlscussionof . .
1 U.S.C. § 7, the Massachuset.ts Sòldiers' Homes wóuld not satlsfflhls requirement if

they admitted the same-sex spouses of veterans. VA would be requited .by I¡;w to .

.withdraw recognItion ofthe homes and.cease paying per diem.forthe care of

veterans

In those homes should such admissions occur. '

You also ask.for our opinion concerning the Impact 'of Goodridge on annuites

provided 10 surviving spouses by DVS, which we.understand' are contingent

on a VA .

. finding of service-connected death. SeGtion 2307 ot-itle 38, UnIted Stàtes Code,

authorizesVA to p,ay budaI-ana funeral expenses incurred as a result of a veteran's

seivíce~connected death "upon the request of the s~rvivors of such veteran.lI. VA has

, interpreted this statute as authorizing' the filing' of servjce~connected burial claims by'

funeral diredôrs; indiYiduals whoiused.parsonal funds to

pay burial. e'.pehaes, and

. executors qr administrators of veteran$'-estátes. See 38.C.F .R..§ 3.1601 (a)(1). - Thus,

VA's corlsideration of a claim fors6rvice-connected burial'benefits'is notconditioned.'

uponmsrriage,and such benefismay be' claimed by.

a person recognizêd under state.

lawas,beìng.the.same-sex spoùseof a veteran as long as that'person used

personal

funds to pày the veteran's buriel expenses or is th.e executor or administrator of thè "

veteran's estate~ Accordingly, VA would make à finding as to whether a veteran's death

was service connected in a claim under 38 U.S.C. § 2307 by

a same-sex spouse who

.. had paid funeral or burial expenses of a deceased veteran.

In a separate communication.with Mr. Lukey, you asked whether the plot

allowance that VA pays to states thàt provide for the interment 01 cartain veterans also 2303(b) of title 38, United States
applies to the interment of veterans' SP9uses. Section

. Code, authorizes Vp., to pay a $300 plot or interment allowance to a 'state that burìes a

"veteran"

without charge for the cost of a.

plot o'r interment. VA."õoes, "riot have authority

under section 2303(b) to pay the a1l0wance to states for burial of.

veterans' spouses.

I hope this informatio!, is helpful to you.
~ :" Sincerely yours, .
I /A 5. ;i.~
Tim S. McClain General Counsel

Case 1:09-cv-11156 Document 1-5 Filed 07/08/2009 Page 1 of 2 Exhibit 4

June 4, 2008

NCA DlRECTlVE 3210t1

Case 1:09-cv-11156 Document 1-5 Filed 07/08/2009 Page 2 of 2

PERSONS-----'._-- "I-N~E~li_G_IB_I.L~IIT!.Yd"C"R"IIIT"E'"R''I'Ail

~YTtIORITY

'INElI!ul~óllØi!ãlII~E"I!f

;"

(6) Vìetnam Civilan' SefVêllnofcons-ìdered actie militry serviçe in thë-Ãiïed Fõrës PLaw95-202, §401,

ii;
"J'

POWs/lnternees

offua U.S. for all lav.tS administered by VA.

Determination date

January 28, 1982, as

publishe in 47 FR
6916

(7)""3me-sex ---..spouses or partners
of veterans

Wiila some States recgnize sama-së civiliinioñs or marrages

for State benefit purpses, individuals in a same-sax civil union or

,marrage are notellgibla for burial in a national cemetery or

State

veteran.~ cemetery that receives federal grant funding based on

being the spouse or surviving spouse of a same~sex vetemn. 38

U.S.C. 101(3) and (31) expressly provide tht

the terms .spouse"

and "su'rviving spouse" respectively refer to a persn of the
oppuite sex.

U.S.C, 101(3) & (31)
38 CFR 3.50(a) 8. (b)

Case 1:09-cv-11156 Document 1-6 Filed 07/08/2009 Page 1 of 1

oiJS 44 (Rev. 12/07)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service opfleadings or other papers as required by law, except as provided by local rules ofcourt. This fonn, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk of Court for the purpose ofinitiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

i. (a) PLAINTIFFS

DEFENDANTS

Commonwealth of Massachusetts

U.S. Dept. of Health and Human Services; Kathleen Sebelius; U.S. Dept. of Veterans Affairs; Eric K. Shinseki; and United D

(b) County of

Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney's (Finn Name, Address, and Telephone Number)

Attorneys (If Known)

Maura T. Healey, Jonathan B. Miller, Office of the Attorney General, One Ashburton Place, Boston, MA 02108,617-727-2200

II. BASIS OF JURISDICTION (Place

an "X" in One Box Only)

01 U.S. Government
Plaintiff

o 3 Federal Question
(U.S. Government Not a Part)

III. CITIZENSHIP OF PRINCIPAL P ARTIES(place an "X" in One Box for Plaintiff
PTF DEF PTF DEF (For Diversity Cases Only) and One Box for Defendant)

Citizen of This State

o I 0 I Incorporated or Principal Place 0 4 0 4 of Business In This State

~ 2 U.S. Government Defendant

o 4 Diversity
(Indicate Citizenship Poafries in Item II)

IV. NATUREOFSUIT (Place an "X" in One Box Only)

I

CONTRACT

"

~ TORTS

-

°c

o I 10 Insurance o 120 Marine o i 30 Miler Act

PERSONAL INJURY
0 3 i 0 Airplane 0 3 i 5 Airplane Product

o i 40 Negotiable Instrument

Liability

o 150 Recovery of Overpayment 0 320 Assault, Libel &

& EnforcementofJudgment

Slander

o 15 i Medicare Act

0 330 Federal Employers'

PERSONAL INJURY
0 362 Personal Injury -
Med. Malpractice
0 365 PersonalInjury -
Product Liability
0 368 Asbestos Personal
Injury Product

o 152 Recovery of Defaulted

Student Loans

0

(Exc!. Veterans)

0

o i 53 Recovery of Overpayment

of Veteran's Benefits

0

o 160 Stockholders' Suits

0

o 190 Other Contract
0 o 195 Contract Product Liability

Liability 340 Marine 345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability 360 Other Personal

Liability
PERSONAL PROPERTY
0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal
Propert Damage
0 385 Propert Damage
Product Liabilty

o 196 Franchise

Iniurv

I

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

o 210 Land Condemnation

0 441 Voting

0 510 Motions to Vacate

o 220 Foreclosure

0 442 Employment

Sentence

0 o 230 Rent Lease & Ejectment

443 Housing!

Habeas Corpus:

o 240 Torts to Land

Accommodations

0 o 245 Tort Product Liability

444 Welfare

0 530 General 0 535 Death Penalty

0 0 o 290 All Other Real Property

445 Amer. wlDisabilities- 540 Mandamus & Other

Employment

0 550 Civil Rights

0 446 Amer. wlDisabilities - 0 555 Prison Condition

Other
0 440 Other Civil Rights

Citizen of Another State
Citizen or Subject of a Forei n Count

o 2 0 2 Incorporated and Principal Place of Business In Another State
o 3 0 3 Foreign Nation

o 5 0 5 o 6 0 6

FORFEITUREIPENALTY

BANKRUPTCY

o 610 Agriculture

o 422 Appeal 28 USC 158

o 620 Other Food & Drug o 625 Drug Related Seizure

o 423 Withdrawal
28 USC 157

of Propert 21 USC 881 o 630 Liquor Laws

PROPERTY RIr.HT"

o 640 R.R. & Truck

o 820 Copyrights

o 650 Airline Regs.

o 830 Patent

o 660 Occupational
SafetylHealth

o 840 Trademark

o 690 Other
.cLABOR
o 7 i 0 Fair Labor Standards Act
o 720 Labor/Mgmt. Relations
o 730 Labor/Mgmt.Reporting
& Disclosure Act
o 740 Railway Labor Act

SOCIAL SECURITY
o 861 HIA (I3~5fI
o 862 Black Lung (923)
o 863 DIWCIDIWW (405(g)) o 864 ssm Title XVI
o 865 RSI 1405Iq))
FEDERAL TAX SUITS

o 790 Other Labor Litigation o 870 Taxes (U.S. Plaintiff

o 791 Emp!. Ret. Inc.

or Defendant)

Security Act

o 87 i IRS-Third Part

26 USC 7609

IMMIGRATION

o 462 Naturalization Application

o 463 Habeas Corpus -
Alien Detainee

o 465 Other Immigration
Actions

OTHER STATUTES

i

0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and

Corrpt Organizations
0 480 Consumer Credit. 0 490 Cable/Sat TV 0 8 i 0 Selective Service 0 850 Securities/Commodities/
Exchange
0 875 Customer Challenge
12 USC 3410
0 890 Other Statutory Actions 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matters 0 894 Energy Allocation Act 0 895 Freedom ofInfonnation
Act
0 900Appeal of Fee Detennination

Under Equal Access
to Justice
Il 950 Constitutionality of

State Statutes

V. ORIGIN
~ i Original
Proceeding

(Place an "X" in One Box Only)

o 2 Removed from 0 3 Remanded from

State Court

Appellate Court

Appeal to District
seCt Jud ment o 4 Reinstated or 0 5 Transferr~d from 0 6 Multidistrict 0 7 Judge from Reopened anoth.er dtstnct Litigation Magistrate

emh CI'te the Amendmen io he U.S. Civil Statutetupdec wUhi.c'h=y.puI;JiOe fnisliU¡ilgu(tDloonnot; :r:ipteeinual;iinsdgicItiJwl1aaul ssteat0utfi!iehuUnl~.:s:s. d,i,voe.nrs~itivul:ita"tnt;"".-uJU.U....v. .('"-."J-'JU1 VI. CAUSE OF ACTION Brief description of cause:
L;onstitutional challenge at 1 U.::.L;. 7

VII. REQUESTED IN COMPLAINT:

o CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND

$

CHECK YES only if demanded in complaint:
JURY DEMAND: 0 Yes íl No

VII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE Tauro

DOCKET NUMBER 1 :09-cv-1 0309-JL T

DATE
07/08/2009
FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:09-cv-11156 Document 1-7 Filed 07/08/2009 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

1. Title of case (name offirst part on each side only) Commonwealth of Massachusetts v. United States Department of Health and Human Services, et al.

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local

rule 40.1 (a)(1 I).

D i.

160,410,470,535, R.23, REGARDLESS OF NATURE OF SUIT.

fZ ii.
IlLJ III.

195,196,368,400,440,441-446,540,550,555,625,710, 720, 730, .Also complete AO 120 or AO 121
740,790,791,820.,830.,840.,850,890,892-894,895, 950. for patent, trademark or copyright cases
110,120,130,140,151,190,210,230,240,245,290,310,
315, 320, 330, 340, 345, 350, 355, 360, 362, 365, 370, 371, 380, 385, 450, 891.

D IV.
ni. V.

220,422,423,430,460,462,463,465,480,490,510,530,610, 620,630,640,650,660,690,810,861-865,870,871,875,900.
150,152,153.

3. Title and number, if any, of related cases. (See local rule 40.1

(g)). If more than one prior related case has been filed in this

district please indicate the title and number of the first filed case in this court.

Gill, et al. v. Offce of Personnel Management, et aI., 1 :09-cv-10309-JLT

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES 0 NO 0

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC

§2403)

YES LZ

NO D

If so, is the U.S.A. or an officer, agent or employee of the U.S. a part?

YES 0

NO D

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?

YES D

NO 0

7. Do all ofthe parties in this action, excluding governmental agencies of the united states and the Commonwealth of

Massachusetts ("governmental agencies"), residing in Massachusetts reside in the same division? - (See Local Rule 40.1

(d)).

YES 0

NO D

A.

If yes, in which division dol! of the non-governmental parties reside?

Eastern Division D Central Division D Western Division

D

B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?

Eastern Division D

Central Division 0 Western Division

D

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,

submit a separate sheet identifying the motions)

YES 0

NO D

(PLEASE TYPE OR PRINT) ATTORNEY'S NAME Maura T. Healey, Jonathan B. Miller, Assistant Attorneys General
ADDRESS Office of the Attorney General, One Ashburton Place, Boston, MA 02108
TELEPHONE NO. 617 -727 -2200

(CategoryForm-08.wpd -2/8/08)

 </s> Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 1 of 36

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the Secretary *

of the United States Department of Health and *

Human Services; UNITED STATES

*

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as the *

Secretary of the United States Department of

*

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 1:09-11156-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth

11 U.S.C. § 7.
2Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 2 of 36
Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the
Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its
own citizens in order to receive and retain federal funds in connection with two joint federal-state
programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED.3 II. Background4
A. The Defense of Marriage Act
Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 T he Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which
defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union
of one man and one woman. In pertinent part, Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”6
3In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.
4Defendants, with limited exception, concede the accuracy of Plaintiff’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
61 U.S.C. § 7. 2

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 3 of 36
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Accounting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10 In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and protections of the federal Constitution) for the
7Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO-04-353R).
8Id. at 1. 9Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10Id. 11Id., ¶ 10.
3

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 4 of 36
health, safety and welfare of their populations.”12 In large part, rules and regulations regarding marriage corresponded with local
circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.”16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of
12Id. 13Id. 14Id. 15Id., ¶ 14. 16Id. 17Id., ¶¶ 15, 18-19. 18Id., ¶ 19.
4

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constitutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.”20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.”21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status determinations
19Id. 20Id. 21Id. 22Id. 23See id., ¶¶ 20-52. 24Id.
5

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for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.”29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.”31
25Id., ¶ 45. 26Defs.’ Mem. Mot. Dismiss, 27. 27See Cott Aff., ¶¶ 36, 44. 28Id., ¶ 35. 29Id. 30Id., ¶ 37. 31Id.
6

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In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from African-American voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39 Throughout this entire period, however, the federal
32Id., ¶ 36. 33Id. 34Id., ¶ 38. 35Id. 36Id. 37Id., ¶ 38. 38Id., ¶ 43. 39In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these
7

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 8 of 36
government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.”43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44 As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recognition of these marriages, the Commonwealth contends that the statute has a significant negative impact on the
statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40Cott Aff., ¶ 45. 41Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43Compl. ¶ 17. 44Id., ¶¶ 18-19. 45Nyberg Aff., ¶¶ 6-7.
8

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 9 of 36
operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47Id. 48Id., ¶ 4. 49Id., ¶ 4. 50Walls Aff., ¶ 8 (citations omitted). 51Id.
9

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 10 of 36
DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.”55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
The VA regulations require that veterans’ cemeteries “be operated solely for the interment
52Id., ¶ 5. 53Id., ¶ 5. 54Id., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department...”)). 55Id., ¶ 6. 5638 U.S.C. § 2408(c). 57Walls Aff., ¶ 10.
10

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of veterans, their spouses, surviving spouses, [and certain of their] children....”58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.”60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.”61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.”62
5838 C.F.R. § 39.5(a). 59Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services (June 18, 2004). 60Id. 61Walls Aff., Ex. 2, NCA Directive 3210/1 (June 4, 2008). 62Walls Aff., ¶ 20.
11

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On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (1-3), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which recognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government,
63Walls Aff., Ex. 3, Copy of Approved Application. 64Walls Aff., ¶ 22, Ex. 4, Marriage License. 65Walls Aff., ¶ 23. 66Id. 67Id., ¶ 24. 68Id., ¶ 25. 69Id., ¶ 26.
12

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Thomas Hopkins is ineligible for burial in Winchendon.70 Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the
Winchendon cemetery and intends to bury the couple together.71 2. MassHealth
Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74
MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately one-half of its Medicaid expenditures76 and administration costs.77 HHS provides MassHealth with billions of
70Id., ¶ 26. 71Id., ¶¶ 21, 27. 72Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73Id. 74Id., ¶¶ 2, 5. 75Id., ¶ 5. 76Id., ¶ 7. 77Id., ¶ 7.
13

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dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for Medicaid when assessed as single, even though they would qualify if assessed as married.85
78Id., ¶ 6. 79Id., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report (June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80Id., ¶ 8. 81Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82Id., ¶ 9. 83Id., ¶ 11. 84Id., ¶ 14. 85Id.
14

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The Commonwealth contends that, under certain circumstances, the recognition of samesex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible. 89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the $43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse
86Id., ¶ 11. 87Id., ¶ 11. 88Id., ¶ 11. 89Id., ¶ 12. 90Id., ¶ 12. 91Id., ¶ 12.
15

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earning $7,000 per year is eligible for Medicaid coverage.92 After the Commonwealth began recognizing same-sex marriages in 2004, MassHealth
sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.”95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.”96 In addition, CMS stated that “because same sex couples are not spouses
92Id., ¶ 12. 93Id., ¶ 15. 94Id., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61. 96Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21,
16

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under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.”97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.”98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
3. Medicare Tax Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s
2008). 97Id. 98Id. 99Callahan Aff., ¶ 22. 100Id., ¶ 23. 101Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26
C.F.R. § 1.106-1). 17

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same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing same-sex marriages, and December 2009.107
Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of
102McHugh Aff., ¶ 4. 103Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104Id. 105Id. 106Id., ¶ 7. 107Id., ¶ 8.
18

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imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion A. Summary Judgment Summary judgment is appropriate where there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
B. Standing This court first addresses the government’s contention that the Commonwealth lacks
108Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109Id., ¶ 10. 110Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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standing to bring certain claims against the VA and HHS.113 “The irreducible constitutional minimum of standing” hinges on a claimant’s ability to
establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.”115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not
113The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115Defs.’ Mem. Mot. Dismiss, 32.
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required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely...speculative.”117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish
116See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007). 117Def.’s Mem. Mot. Dismiss, 34.
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marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”120 The division between state and federal powers delineated by the Constitution is not merely “formalistic.”121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.”122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is
118New York v. United States, 505 U.S. 144, 156 (1992). 119United States v. Morrison, 529 U.S. 598, 607 (2000). 120U.S. CONST. Amend. X. 121New York v. United States, 505 U.S. 144, 187 (1992). 122Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123Id.
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authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.”124
Since, in essence, “the two inquiries are mirror images of each other,”125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or more of its powers enumerated in the Constitution.”126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.”127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
124New York, 505 U.S. at 155. 125Id. at 156. 126United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)). 127United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)). 128Morrison, 529 U.S. at 607.
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The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdictional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal
129See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause).
130529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”).
131United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce”).
132U.S. CONST. art. I, § 8. 24

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statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133
It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole
133Pl.’s Reply Mem., 3. 134Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). 135South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136483 U.S. 203 (1987). 137Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).
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requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to...legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’”139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.”140
138Dole, 483 U.S. at 210. 139Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140Id. (internal citation omitted).
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In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the same-sex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal
141Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).
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funding, this court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”142
A. DOMA Regulates the Commonwealth “as a State” With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam and Winchendon should the same-sex spouse of a veteran
142106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass'n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).
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be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA
directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light
of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth
Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must
now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of
marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.”144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and paternity,”145 is often held out as the archetypal area of local concern.146
143The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568). 145Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 146See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the
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The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action...can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.”148
State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard
Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 30

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their states’ areas of sovereign concern. The history of the regulation of marital status determinations therefore suggests that this
area of concern is an attribute of state sovereignty, which is “truly local” in character. That same-sex marriage is a contentious social issue, as the government argues, does not
alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect
149See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
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of marriage, divorce, and childrearing on the national economy is undoubtedly significant.”150
Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he
whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”151
The government has offered little to disprove the persuasive precedential and historical
arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.152 The primary thrust of the government’s rebuttal is, in essence,
that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that
Congress had not chosen to codify a definition of marriage for purposes of federal law prior to
1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.”153 Having determined that DOMA is not rooted in the Spending Clause, however, this
court stands convinced that the authority to regulate marital status is a sovereign attribute of
150529 U.S. at 615 (emphasis added). 151542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted). 152Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process. 153Defs.’ Reply Mem., 5.
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statehood.

C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions

Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its

154United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’” were “abandon[ed] ... as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
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separate and independent existence.”155 And, in view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.”156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury same-sex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an application for the burial of Thomas Hopkins, the same-sex partner of Darrel
155United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 64552 (2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.
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Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,”157 because “the Constitution ... divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of
157New York, 505 U.S. at 159. 35

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 36 of 36 the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge
158Id. at 187. 36

 </s> UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the

*

Secretary of the United States Department of

*

Health and Human Services; UNITED STATES *

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as *

the Secretary of the United States Department of *

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 09-11156-JLT

JUDGMENT

August 12, 2010

TAURO, J.

Having allowed Plaintiff’s Motion for Summary Judgment [#26], this court hereby enters

the following judgment in this action:

1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law

recognizes marriages between same-sex couples.

2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et

seq. is unconstitutional as applied in Massachusetts, where state law recognizes

marriages between same-sex couples.

3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is

unconstitutional as applied in Massachusetts, where state law recognizes marriages

between same-sex couples. 4. Defendants and any other agency or official acting on behalf of Defendant the
United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials. 5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ Joseph L. Tauro United States District Judge
2

 </s> UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF

)

MASSACHUSETI'S,

)

)

Plaintiff,

)

)

v.

) Civ. A. No. l :09-111 56-JLT

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES;

)

KATHLEEN SEBELIUS, Secretary of the

)

United States Department of Health and

)

Human Services; UNITED STATES

)

DEPARTMENT OF VETERANS AFFAIRS; )

ERICK. SHINSEKI, Secretary of the United )

States Department of Veterans Affairs; and )

the UNITED STATES OF AMERICA,

)

)

-----------D-e-fe-n-da-n-ts-.------------- )

TAURO, l The Defendants have moved for a stay of the injunctive relief entered as part of the
judgment in this action pending appeal, and the Plaintiff has assented to that motion. Upon consideration thereof, IT IS ORDERED THAT: The Defendants' motion is GRANTED, and the injunctive relief entered as part of the
judgment in this action is stayed pending the disposition of any appeal filed by the Defendants.

 </s> Case: 10-2204 Document: 00116175339 Page: 1 Date Filed: 02/24/2011 Entry ID: 5528735
U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave., NW, Rm 7261 Washington, DC 20530
Tel: (202) 353-8253 Fax: (202) 514-8151
February 24, 2010
VIA ELECTRONIC FILING
Margaret Carter Clerk of the United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210
Re: Massachusetts v. HHS et al., No. 10-2204 Hara et al. v. OPM et al., Nos. 10-2207, and 10-2214
Dear Ms. Carter:
Please see the attached letters relating to the above-captioned cases.
Respectfully submitted,
/s/ Benjamin S. Kingsley Benjamin S. Kingsley Attorney, Appellate Staff Civil Division, Room 7261 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001
Counsel for Respondents

Case: 10-2204 Document: 00116175339 Page: 2 Date Filed: 02/24/2011 Entry ID: 5528735
CERTIFICATE OF SERVICE I hereby certify that on February 24, 2011, I caused a copy of the foregoing to be filed electronically with the Court using the Court’s CM/ECF system, and also caused four paper copies to be delivered to the Court by hand delivery within two business days. I also hereby certify that the participants in the case will be served via the CM/ECF system.
/s/ Benjamin S. Kingsley Benjamin S. Kingsley Benjamin.S.Kingsley@usdoj.gov Attorney, Appellate Staff Civil Division, Room 7261 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001

Case: 10-2204 Document: 00116175339 Page: 3U. SD. aDteepFairletmd:e0n2t /o2f4J/u2s0t1ic1e Entry ID: 5528735 Civil Division

Assi.~umt Attorney General

Washington. D.C. 20530

VIAECF

Februmy 24, 2011

Margaret Carter Clerk of the United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210

Re: Litigation Involving Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7

Dear Ms. Carter:

The President and Attorney General have recently made a determination regarding the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7. Pursuant to th<:: attached letter, the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 ofDOMA may not be constitutionally applied to samesex couples whose maJTiages are legally recognized under state law; and that the Depmiment will cease its defense of Section 3 in such cases.

The following cases involving Section 3 of DOMA are pending in this jurisdiction:

Massachusetts v. HHS et al. (1st Cir. No. 10-2204) Haraetal. v. OPMetal. (lstCir. Nos. 10-2207 and 10-2214)

Further, as the Attorney General explained in the attached letter, we hereby "notify the courts of our interest in providing Congress a full and fair oppotiunity to participate in the litigation in those cases." In addition, we "will remain parties to the case and continue to represent the interests of the United States throughout the litigation."

Respectfully submitted,

Assistant Attorney General

Case: 10-2204 Document: 00116175339 Page: 4 Date Filed: 02/24/2011 Entry ID: 5528735
~ffice of t4t 1\ttorntt! ~eneral
m. Bas~ingtnn. Ql. 205:30
February 23, 2011
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515
Re: Defense of Marriage Act Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 ofthe Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, 1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense ofthis provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 ofDOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form ofheightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications
1 DOMA Section 3 states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Case: 10-2204 Document: 00116175339 Page: 5 Date Filed: 02/24/2011 Entry ID: 5528735
based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.2
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587,602-03 (1987); City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).3
2 See, e.g., Dragovich v. U.S. Department ofthe Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011 ); Gill v. Office ofPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County ofOrange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009). 3 While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200,216 (1995)(classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515,531 (1996) (observing that '"our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics "beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).
2

Case: 10-2204 Document: 00116175339 Page: 6 Date Filed: 02/24/2011 Entry ID: 5528735
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of2010, Pub. L. No. 111321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 51 7 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).4 Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. 5 And none
4 See Equality Foundation v. City ofCincinnati, 54 F.3d 26I, 266-67 & n. 2. (6th Cir. I995); Steffan v. Perry, 4I F.3d 677, 685 (D.C. Cir. I994); Woodward v. United States, 871 F.2d I068, I076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 88I F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, I03 (D.C. Cir. I987).
5See, e.g, Lofton v. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
3

Case: 10-2204 Document: 00116175339 Page: 7 Date Filed: 02/24/2011 Entry ID: 5528735
engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." !d. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.7 See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No. I04-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. 6 See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation ofGreater Cincinnati, Inc. v. City ofCincinnati, 128 F.3d 289,292-94 (6th Cir. 1997).
7 See, e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ... feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are "in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an "anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
4

Case: 10-2204 Document: 00116175339 Page: 8 Date Filed: 02/24/2011 Entry ID: 5528735
fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married samesex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5

Case: 10-2204 Document: 00116175339 Page: 9 Date Filed: 02/24/2011 Entry ID: 5528735
DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position ofthe United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys will also notifY the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
6

 </s> Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 1 of 9
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:09−cv−11156−JLT

APPEAL

Commonwealth of Massachusetts v. United States Department of Date Filed: 07/08/2009

Health and Human Services et al

Date Terminated: 08/12/2010

Assigned to: Judge Joseph L. Tauro

Jury Demand: None

related Case: 1:09−cv−10309−JLT

Nature of Suit: 950 Constitutional − State

Case in other court: First Circuit, 10−02204 Supreme Court, 12−00015

Statute Jurisdiction: Federal Question

Supreme Court, 12−00097

Cause: 28:1331 Fed. Question

Plaintiff

Commonwealth of Massachusetts

represented by Christopher K. Barry−Smith Massachusetts Attorney General's Office One Ashburton Place Boston, MA 02108 617−963−2539 Fax: 617−727−5765 Email: chris.barry−smith@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

David S. Friedman Office of the Attorney General (Bos) One Ashburton Place Boston, MA 02108 617−727−2200 Email: david.s.friedman@state.ma.us TERMINATED: 01/26/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Miller Office of the Attorney General (MA) Suite 301 10 Mechanic Street Worcester, MA 01608 617−963−2073 Fax: 617−727−5762 Email: jonathan.miller@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura T. Healey Massacusetts Attorney General's Office One Ashburton Place 18th Flr. Boston, MA 02108 617−727−2200 ext. 2068 Fax: 617−727−5762 Email: maura.healey@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica M. Lindemann Barnes &Thornburg 11 South Meridian Street Indianapolis, IN 46204−3599 317−236−1313

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 2 of 9
Email: jessica.lindemann@btlaw.com TERMINATED: 07/08/2011 ATTORNEY TO BE NOTICED

V. Defendant United States Department of Health and Human Services
Defendant Kathleen Sebelius in her official capacity as the Secretary of the United States Department of Health and Human Services
Defendant United States Department of Veterans Affairs
Defendant Eric K. Shinseki in his official capacity as the Secretary of the United States Department of Veterans Affairs

represented by Christopher R. Hall U.S. Department of Justice Federal Programs Branch 20 Massachusetts Avenue NW Room 7128 Washington, DC 20530 202−514−4778 Fax: 202−616−8470 Email: Christopher.Hall@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler U.S. Department of Justice Civil Division P.O. Box 883 Ben Franklin Station Washington, DC 20001 202−305−0167 Fax: 202−616−8470 Email: steven.bressler@usdoj.gov TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 3 of 9

Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Representative Lamar Smith TERMINATED: 01/19/2011

represented by Philip D. Moran Law Offices of Philip D. Moran 265 Essex Street Suite 202 Salem, MA 01970 978−745−6085 Fax: 978−741−2572 Email: philipmoranesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Mark Thomas TERMINATED: 06/16/2010

represented by Mark Thomas 482 Beacon Street Boston, MA 02115 617−267−2859 PRO SE

Date Filed 07/08/2009 07/08/2009 07/08/2009 07/08/2009
07/08/2009

# Docket Text
1 COMPLAINT Payment will be delivered against all defendants, filed by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Civil Cover Sheet, # 6 Civil Cover Sheet)(Miller, Jonathan) (Entered: 07/08/2009)
ELECTRONIC NOTICE of Case Assignment. Judge Joseph L. Tauro assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Robert B. Collings (Cummings, Mary) (Entered: 07/08/2009)
2 General Order 09−1, dated January 6, 2009 regarding the E−Government Act and Personal Identifiers entered. (Cummings, Mary) (Entered: 07/08/2009)
3 Summons Issued as to United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Cummings, Mary) (Entered: 07/08/2009)
Letter sent to Attorney David Friedman advising of inactive status in the Bar of this Court. Notice, reregistration and ECF application included. (Abaid, Kimberly) (Entered: 07/08/2009)

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 4 of 9

07/09/2009 09/02/2009
09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/17/2009 09/17/2009 10/01/2009 10/01/2009
10/07/2009
10/08/2009 10/09/2009 10/30/2009 10/30/2009
10/30/2009

Filing fee/payment: $ 350.00, receipt number BST011613 for 1 Complaint (Russo, Patricia) (Entered: 07/09/2009)
4 NOTICE of Appearance by Steven Y. Bressler on behalf of United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America (Bressler, Steven) (Entered: 09/02/2009)
5 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States Department of Health and Human Services served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
6 SUMMONS Returned Executed by Commonwealth of Massachusetts. Kathleen Sebelius served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
7 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States Department of Veterans Affairs served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
8 SUMMONS Returned Executed by Commonwealth of Massachusetts. Eric K. Shinseki served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
9 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States of America served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
10 MOTION to Intervene or MOTION for Leave to File Amicus Brief ( Responses due by 10/1/2009) by Mark Thomas.(Abaid, Kimberly) (Entered: 09/17/2009)
11 AFFIDAVIT by Mark Thomas. (Abaid, Kimberly) (Entered: 09/17/2009)
12 RESPONSE to Motion re 10 MOTION to Intervene MOTION for Leave to File filed by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit)(Miller, Jonathan) (Entered: 10/01/2009)
13 RESPONSE to Motion re 10 MOTION to Intervene MOTION for Leave to File filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 10/01/2009)
14 Assented to MOTION for Extension of Time to October 30, 2009 to Respond to Plaintiff's Complaint by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/07/2009)
15 MOTION for Leave to Clarify Motion of September 17, 2009 by Mark Thomas.(Abaid, Kimberly) (Entered: 10/08/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 14 Motion for Extension of Time (Lovett, Zita) (Entered: 10/09/2009)
16 MOTION to Dismiss by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/30/2009)
17 MEMORANDUM in Support re 16 MOTION to Dismiss filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 10/30/2009)
18 Assented to MOTION for Leave to File Excess Pages in Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss (Docket Entry No. 17) by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/30/2009)

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 5 of 9

11/02/2009 11/17/2009 11/19/2009
11/19/2009 01/26/2010 01/29/2010
01/29/2010
01/29/2010 02/01/2010 02/11/2010 02/17/2010
02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010

19 Letter from Maura T. Healey. (Abaid, Kimberly) (Entered: 11/03/2009)
20 STIPULATION And Proposed Order Regarding Schedule by Commonwealth of Massachusetts. (Healey, Maura) (Entered: 11/17/2009)
21 Judge Joseph L. Tauro: ENDORSEMENT re 20 Stipulation filed by Commonwealth of Massachusetts − APPROVED AND SO ORDERED. (Abaid, Kimberly) (Entered: 11/19/2009)
Set/Reset Deadlines as to 16 MOTION to Dismiss. Responses due by 2/1/2010 Replies due by 3/29/2010. (Abaid, Kimberly) (Entered: 11/19/2009)
22 NOTICE of Withdrawal of Appearance for David Friedman (Miller, Jonathan) Modified on 1/26/2010 (Abaid, Kimberly). (Entered: 01/26/2010)
23 Assented to MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss to February 18, 2010 by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit)(Miller, Jonathan) (Entered: 01/29/2010)
Judge Joseph L. Tauro: Electronic ORDER entered granting 23 Motion for Extension of Time to respond to February 18, 2010. (Lovett, Zita) (Entered: 01/29/2010)
Judge Joseph L. Tauro: Electronic ORDER entered finding as moot 18 Motion for Leave to File Excess Pages (Lovett, Zita) (Entered: 01/29/2010)
Set/Reset Deadlines as to 16 MOTION to Dismiss. Responses due by 2/18/2010 (Johnson, Jay) (Entered: 02/01/2010)
24 MOTION to Intervene and File Motion to Dismiss by Mark Thomas.(Abaid, Kimberly) (Entered: 02/12/2010)
25 MOTION for Leave to File Excess Pages for Memorandum of Law in Opposition to Defendants' Motion to Dismiss and in Support of Plaintiff's Motion for Summary Judgment by Commonwealth of Massachusetts.(Miller, Jonathan) (Entered: 02/17/2010)
26 MOTION for Summary Judgment by Commonwealth of Massachusetts.(Miller, Jonathan) (Entered: 02/18/2010)
27 STATEMENT of facts re 26 MOTION for Summary Judgment. (Miller, Jonathan) (Entered: 02/18/2010)
28 MEMORANDUM in Support re 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
29 MEMORANDUM in Opposition re 16 MOTION to Dismiss filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
30 AFFIDAVIT of Robin Callahan re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
31 AFFIDAVIT of William Walls re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
32 AFFIDAVIT of Kevin McHugh re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
33 AFFIDAVIT of Dolores Mitchell re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
34 AFFIDAVIT of Stanley Nyberg re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
35 AFFIDAVIT of Michael Lamb re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
36 AFFIDAVIT of Gary Segura re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 6 of 9

02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/23/2010 02/25/2010 03/04/2010 03/09/2010 03/24/2010
03/24/2010
03/25/2010 04/22/2010 04/30/2010 04/30/2010
04/30/2010 05/18/2010

37 AFFIDAVIT of Gregory Herek re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
38 AFFIDAVIT of George Chauncey re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
39 AFFIDAVIT of Nancy Cott re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
40 AFFIDAVIT of Jonathan Miller re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
41 RESPONSE to Motion re 24 MOTION to Intervene filed by Commonwealth of Massachusetts. (Healey, Maura) (Entered: 02/23/2010)
42 RESPONSE to Motion re 24 MOTION to Intervene filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 02/25/2010)
43 AFFIDAVIT of Robin Callahan re 26 MOTION for Summary Judgment (with signature) by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 03/04/2010)
ELECTRONIC NOTICE of Hearing :Motion Hearing set for 5/26/2010 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 03/09/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 10 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/24/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 25 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/24/2010)
44 MEMORANDUM in Support re 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 03/25/2010)
45 Judge Joseph L. Tauro:ORDER entered. DENIED 10 Motion to Intervene or Motion for Leave to File Amicus Brief; DENIED 15 Motion for Leave to Clarify Motion of September 17, 2009; DENIED 24 Motion for Leave to Intervene and File a Motion to Dismiss. (Geraldino−Karasek, Clarilde) (Entered: 04/23/2010)
46 NOTICE of Appearance by Christopher R. Hall on behalf of Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America (Hall, Christopher) (Entered: 04/30/2010)
47 REPLY to Response to 16 MOTION to Dismiss and Consolidated Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America. (Attachments: # 1 Response to Plaintiff's Statement of Material Facts Not in Dispute)(Hall, Christopher) (Entered: 04/30/2010)
48 Response by United States of America to 27 Statement of facts. (Abaid, Kimberly) (Entered: 05/03/2010)
49 NOTICE of Appearance by Jessica M. Lindemann on behalf of Commonwealth of Massachusetts (Lindemann, Jessica) (Entered: 05/18/2010)

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 7 of 9

05/19/2010 05/26/2010
06/07/2010
06/07/2010 06/14/2010 06/16/2010 06/16/2010 06/24/2010 07/08/2010 07/08/2010 07/19/2010 07/23/2010 07/26/2010 07/29/2010

50 REPLY to Response to 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 05/19/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: taking under advisement 26 Motion for Summary Judgment; taking under advisement 16 Motion to Dismiss; Motion Hearing held on 5/26/2010 re 16 MOTION to Dismiss filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs, 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Court Reporter: Helana Kline at 508−525−7769.)(Attorneys present: Healy,Miller,Lindeman,pltfs;Hall,deft.) (Lovett, Zita) (Entered: 05/27/2010)
51 Transcript of Motion Hearing held on May 26, 2010, before Judge Joseph L. Tauro. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Helena Kline at 508−525−7769 Redaction Request due 6/28/2010. Redacted Transcript Deadline set for 7/8/2010. Release of Transcript Restriction set for 9/7/2010. (Scalfani, Deborah) (Main Document 51 replaced on 6/9/2010) (Scalfani, Deborah). (Entered: 06/07/2010)
52 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 06/07/2010)
53 MOTION to Leave to Intervene and MOTION to Compel Ruling pursuant to 28 U.S.C.A. § 1652; Rule 24 (b) United States Constitution Article IV § 4 and 14th Amendment by Mark A. Thomas.(Geraldino−Karasek, Clarilde) (Entered: 06/15/2010)
54 RESPONSE to Motion re 53 MOTION to Intervene filed by Commonwealth of Massachusetts. (Lindemann, Jessica) (Entered: 06/16/2010)
55 Judge Joseph L. Tauro: ORDER entered DENIED IN PART and DENIED IN PART AS MOOT re 53 Motion to Leave to Intervene and Motion to Compel Ruling pursuant to 28 U.S.C.A. § 1652; Rule 24 (b) United States Constitution Article IV § 4 and 14th Amendment by Mark A. Thomas. (Geraldino−Karasek, Clarilde) (Entered: 06/16/2010)
56 RESPONSE and AFFIDAVIT of Applicant−Intervenor filed by Mark Thomas re 55 . (Geraldino−Karasek, Clarilde) Modified to create document association on 6/25/2010 (Geraldino−Karasek, Clarilde). (Entered: 06/24/2010)
57 Judge Joseph L. Tauro: ORDER entered. Defendant's Motion to Dismiss re 16 is DENIED and Plaintiff's Motion for Summary Judgment re 26 is ALLOWED. IT IS ORDERED. (Main Document 57 replaced to correct docket entry on 7/8/2010) (Geraldino−Karasek, Clarilde). (Entered: 07/08/2010)
58 Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered. Defendant's Motion to Dismiss re 16 is DENIED and Plaintff's Motion for Summary Judgment re 26 is ALLOWED. AN ORDER HAS ISSUED.(Main Document 58 replaced on 7/8/2010 to correct docket entry ) (Geraldino−Karasek, Clarilde). (Entered: 07/08/2010)
59 MOTION for Leave to Intervene and MOTION to Amend, Revise, or Vacate Judgment pursuant to Rule 24 (b); Rule 59 (e) and 14th Amendment Due Process Clause by Mark Thomas.(Geraldino−Karasek, Clarilde) (Entered: 07/20/2010)
60 Opposition re 59 MOTION for Leave to File filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 07/23/2010)
61 MOTION for Leave to File Clarifying Points of Law to Movant's Rule 24(b) and 59 (e) Motions by Mark Thomas.(Geraldino−Karasek, Clarilde) (Entered: 07/26/2010)
62 Judge Joseph L. Tauro: ORDER entered. After reviewing the Parties' written submissions, this court hereby orders that: MOTION for Leave to Intervene and

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 8 of 9

08/12/2010 08/12/2010 08/19/2010
08/24/2010 08/24/2010 10/05/2010 10/05/2010 10/05/2010 10/05/2010
10/12/2010
10/12/2010 10/13/2010 10/18/2010

MOTION to Amend, Revise, or Vacate Judgment, re 59 IS DENIED and MOTION for Leave to File Clarifying Points of Law to Movant's Motion to Amend, Revise or Vacate Judgment re 61 IS DENIED. See Order for details. IT IS SO ORDERED. (Geraldino−Karasek, Clarilde) (Entered: 07/29/2010)
63 Judge Joseph L. Tauro: JUDGMENT ORDER entered. (Geraldino−Karasek, Clarilde) (Entered: 08/12/2010)
Civil Case Terminated. (Geraldino−Karasek, Clarilde) (Entered: 08/12/2010)
64 Assented to MOTION to Stay re 63 Judgment for Stay of Injunctive Relief Pending Appeal by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 08/19/2010)
65 Judge Joseph L. Tauro: ORDER entered ALLOWED 64 Motion to Stay of Injunctive Relief Pending Appeal. (Geraldino−Karasek, Clarilde) (Entered: 08/25/2010)
66 Judge Joseph L. Tauro: ORDER entered 64 . The Defendants' is GRANTED, and the injunctive relief entered as part of the judgment is this action is stayed pending the disposition of any appeal filed by the Defendants. (Geraldino−Karasek, Clarilde) (Entered: 08/25/2010)
67 MOTION to Intervene by Lamar Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Notice of Appeal)(Moran, Philip) (Entered: 10/05/2010)
68 MEMORANDUM in Support re 67 MOTION to Intervene filed by Lamar Smith. (Moran, Philip) (Entered: 10/05/2010)
69 NOTICE of Appearance by Philip D. Moran on behalf of Lamar Smith (Moran, Philip) (Entered: 10/05/2010)
70 MOTION for Leave to Appear Pro Hac Vice for admission of Brian W. Raum, Byron J. Babione, Dale Schowengerdt Filing fee: $ 150, receipt number 0101−3096097 by Lamar Smith. (Attachments: # 1 Certificate of Brian W. Raum for Leave to Appear Pro Hac Vice, # 2 Certificate of Byron J. Babione for Leave to Appear Pro Hac Vice, # 3 Certificate of Dale Schowengerdt for Leave to Appear Pro Hac Vice, # 4 Proposed Order)(Moran, Philip) (Entered: 10/05/2010)
71 Defendants' NOTICE OF APPEAL as to 63 Judgment, 57 Memorandum &ORDER, 58 Order, by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/1/2010. (Hall, Christopher) (Entered: 10/12/2010)
72 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 71 Notice of Appeal, (Ramos, Jeanette) (Entered: 10/12/2010)
USCA Case Number 10−2204 for 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. (Ramos, Jeanette) (Entered: 10/13/2010)
73 NOTICE of Withdrawal re 67 MOTION to Intervene by Lamar Smith (Moran, Philip) (Modified on 10/20/2010 to correct docket entry Geraldino−Karasek, Clarilde). (Entered: 10/18/2010) (Entered: 10/18/2010)

Case: 1:09-cv-11156 As of: 10/16/2012 05:51 PM EDT 9 of 9

10/18/2010
01/19/2011 07/07/2011 05/31/2012
05/31/2012 07/09/2012 07/31/2012

E−Mail Notice re 73 originally issued on 10/18/2010 returned as undeliverable. Name of Addressee: Jessica Lindemann. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Burgos, Sandra) (Entered: 10/18/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered FINDING AS MOOT 67 Motion to Intervene; FINDING AS MOOT 70 Motion for Leave to Appear Pro Hac Vice pursuant to 73 Notice of Withdrawal Motion. (Geraldino−Karasek, Clarilde) (Entered: 01/19/2011)
74 NOTICE of Withdrawal of Appearance by Jessica M. Lindemann (Lindemann, Jessica) (Entered: 07/07/2011)
75 USCA Judgment as to 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals. Judgment issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
76 OPINION of USCA as to 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. Opinion issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
77 Case Appealed to Supreme Court, Case Number 12−15. The petition for a writ of certiorari in the above entitled case was filed on July 3, 2012. (Ramos, Jeanette) (Entered: 07/09/2012)
78 Case Appealed to Supreme Court, Case Number 12−97. The petition for a writ of certiorari in the above entitled case was filed on July 20, 2012 (Ramos, Jeanette) (Entered: 07/31/2012)

 </s> Nos. 10-2204, 10-2207, and 10-2214
IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ______________________
COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants-Appellants. __________________________________________
DEAN HARA, Plaintiff-Appellee/Cross-Appellant,
NANCY GILL, et al., Plaintiffs-Appellees,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees.
__________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________
SUPERSEDING BRIEF FOR THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL. __________________________________________
TONY WEST As s is tan t Atto rn e y Ge n e ral
CARMEN M. ORTIZ Un ite d State s Atto rn e y
ROBERT E. KOPP (202) 514-3311 MICHAEL JAY SINGER (202) 514-5432 AUGUST E. FLENTJE (202) 514-3309 BENJAMIN S. KINGSLEY (202) 353-8253 Atto rn e y s , Ap p e llate Staff Civil Divisio n U.S. De p artm e n t o f Ju s tic e 950 Pe n n s y lv an ia Av e ., N.W., Ro o m 7261 Was h in g to n , D.C. 20530-0001 ______________________________________________________________________________ ______________________________________________________________________________

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION ................................................................................. 1

STATEMENT OF THE ISSUES ....................................................................................... 2

STATUTES AND REGULATIONS ................................................................................. 2

STATEMENT OF THE CASE .......................................................................................... 2

STATEMENT OF THE FACTS ........................................................................................ 4

I. Statutory Background ..................................................................................... 4

II. Facts and Prior Proceedings .......................................................................... 5

A. Gill v . Office of Personnel Management ................................................... 5

1. Factual Background ................................................................. 5

2. Prior Proceedings ................................................................... 11

B. Massachusetts v. HHS .......................................................................... 14

1. Factual Background ............................................................... 14

2. Prior Proceedings ................................................................... 20

SUMMARY OF ARGUMENT ......................................................................................... 21

STANDARD OF REVIEW ............................................................................................... 24

ARGUMENT ........................................................................................................................ 24

I. DOMA Violates Equal Protection ............................................................. 24

A. Plaintiffs’ Equal Protection Challenge to DOMA Is Subject to Heightened Scrutiny under Supreme Court Precedent ................................................................................. 25

1. Gays and Lesbians Are a Suspect or QuasiSuspect Class under the Relevant Factors Identified by the Supreme Court ......................................... 28
i. Gays and Lesbians Have Been Subject to a History of Discrimination ................... 28
a. Discrimination by the Federal Government .................................................... 30
b. Discrimination by State and Local Governments .................................................. 33
c. Discrimination by Private Parties ................ 37
ii. Gays and Lesbians Exhibit Immutable Characteristics that Distinguish Them as a Group ................................................................... 39
iii. Gays and Lesbians Are Minorities with Limited Political Power ............................................. 41
iv. Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society ....................... 43
B. DOMA Fails Heightened Scrutiny ................................................. 45
II. DOMA Violates the Spending Clause by Imposing an Unconstitutional Condition on the Receipt of Federal Funds ............... 53
III. DOMA Does Not Violate the Tenth Amendment by Interfering with State Sovereignty .............................................................. 55
CONCLUSION .................................................................................................................... 62
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
- ii -

ADDENDUM - iii -

TABLE OF AUTHORITIES

Cases:

Page

Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998) ................... 41

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ........................................................................................................ 58

Atlantic Fish Spotters Ass’n v. Evans, 321 F.3d 220 (1st Cir. 2003) .......................................................................................... 58

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................................................................... 26

Baker v. Nelson, 409 U.S. 810 (1972) ........................................................................................................ 26

Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev’d, 769 F.2d 289 (5th Cir. 1985) .............. 34

Bd. of Educ. v. Calderon, 110 Cal. Rptr. 916 (1973) ............................................................................................... 34

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ............................................................................ 27, 28, 29

Boggs v. Boggs, 520 U.S. 833 (1997) ........................................................................................................ 59

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................................................ 24

Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) ............................................................................................. 35

Boutilier v. INS, 387 U.S. 118 (1967) .................................................................................................. 32, 33

- iv -

Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997) ........................................................................................ 35
Bowen v. Gilliard, 483 U.S. 587 (1987) .................................................................................................. 22, 27
Bowers v. Hardwick, 478 U.S. 186 (1986) ........................................................................................... 27, 29, 47
Burton v. Cascade Sch. Dist. Union High Sch., No.5, 512 F.2d 850 (9th Cir. 1975) ................................................................................... 33, 34
Calhoun v. Pennington, No. 09-3286 (N.D. Ga.) ................................................................................................. 36
Childers v. Dallas Police Dep’t, 513 F. Supp. 134 (N.D. Tex. 1981), aff’d without opinion, 669 F.2d 732 (5th Cir. 1982) ........................................................ 33
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................................................. 22, 24, 25, 27, 43, 44, 45
City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) ................................................................................ 34
Clark v. Jeter, 486 U.S. 456 (1988) .................................................................................................. 25, 46
College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ........................................................................................................ 53
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................................................................... 22, 24, 27
Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................................................................................................ 48
Egelhoff v. Egelhoff, 532 U.S. 141 (2001) ........................................................................................................ 59
- v -

Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) ...................................................................................... 28, 37
Frontiero v. Richardson, 411 U.S. 677 (1973) .................................................................................................. 38, 43
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) ........................................................................................................ 57
Gaylord v. Tacoma Sch. Dist. No. 10, 559 P.2d 1340 (Wash. 1977) .......................................................................................... 33
Graham v. Richardson, 403 U.S. 365 (1971) ........................................................................................................ 52
Ex parte H.H., 830 So. 2d 21 (Ala. 2002) ............................................................................................... 34
Hara v. OPM, No. 09-3134 (Fed. Cir.) .................................................................................................. 12
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ....................................................................................... 39
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ...................................................................... 27, 28, 29, 39
Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ........................................................................................................ 59
Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) ........................................................................................................ 57
Irvis v. Scott, 318 F. Supp. 1246 (M.D. Pa. 1970) .............................................................................. 36
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ......................................................................................... 28
- vi -

Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................................ 26, 27, 29, 41, 45, 48
Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569 (N.D. Cal. 1982), aff’d Hill v. INS, 714 F.2d 1470 (9th Cir. 1983) .......................................................... 32
Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ....................................................................................... 28
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ................................................................................................ 42
Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ........................................................................................................ 44
Mathews v. Lucas, 427 U.S. 495 (1976) ........................................................................................................ 40
Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984) ..................................................................................... 28
National League of Cities v. Usery, 426 U.S. 833 (1976) .................................................................................................. 21, 57
New York v. United States, 505 U.S. 144 (1992) ................................................................................................. 55, 56
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ....................................................................................................... 53, 55
Printz v. United States, 521 U.S. 898 (1997) .................................................................................................. 53, 56
Pryor v. Mun. Court, 599 P.2d 636 (Cal. 1979) ................................................................................................ 36
Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998) ........................................................................................... 35
- vii -

Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) ...................................................................................... 27, 28
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ........................................................................................................ 25
Roe v. Roe, 324 S.E.2d 691 (Va. 1985) ............................................................................................. 35
Romer v. Evans, 517 U.S. 620 (1996) ........................................................................................... 26, 45, 48
Rostker v. Goldberg, 453 U.S. 57 (1981) ..................................................................................................... 27, 28
Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) ..................................................................................... 34
South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................................. 53, 54
St. Paul Citizens for Human Rights v. City Council of the City of St. Paul, 289 N.W.2d 402 (Minn. 1979) ...................................................................................... 37
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................................................................................... 27, 28
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) .................................................................................................. 42
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ...................................................................................... 27, 28
United States v. Ahlers, 305 F.3d 54 (1st Cir. 2002) ............................................................................................ 58
United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) ........................................................................... 24, 56, 57
- viii -

United States v. Darby, 312 U.S. 100 (1941) ........................................................................................................ 56
United States v. Lewko, 269 F.3d 64 (1st Cir. 2001) ...................................................................................... 56, 60
United States v. Meade, 175 F.3d 215 (1st Cir. 1999) .................................................................................... 56, 61
United States v. Virginia (“VMI”), 518 U.S. 515 (1996) ........................................................................................... 26, 46, 49
United States v. Volungus, 595 F.3d 1 (1st Cir. 2010) .............................................................................................. 24
Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990) ........................................................................................................ 15
Woodard v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 27, 28
Constitution:
Art. I, § 8, cl. 1 ............................................................................................................ 3, 53, 54
U.S. Const. amend. X ........................................................................................................... 55
Statutes:
1 U.S.C. § 7 ........................................................................................................................ 5, 16
5 U.S.C. § 8101(6)-(11) ......................................................................................................... 60
5 U.S.C. § 8341(a)(1)(A)-(a)(2)(A) ...................................................................................... 60
5 U.S.C. § 8901(3)(B) .............................................................................................................. 7
5 U.S.C. § 8901(5) ................................................................................................................... 7
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5 U.S.C. § 8905 ........................................................................................................................ 7 5 U.S.C. § 8906 .................................................................................................................... 6, 7 5 U.S.C. § 8951 ........................................................................................................................ 8 5 U.S.C. § 8952 ........................................................................................................................ 8 5 U.S.C. § 8956(a) ................................................................................................................... 8 5 U.S.C. § 8958(a) ................................................................................................................... 8 5 U.S.C. § 8981 ........................................................................................................................ 8 5 U.S.C. § 8982 ........................................................................................................................ 8 5 U.S.C. § 8986(a) ................................................................................................................... 8 5 U.S.C. § 8988(a) ................................................................................................................... 8 5 U.S.C. § 8951(2) ................................................................................................................... 8 5 U.S.C. § 8981(2) ................................................................................................................... 8 7 U.S.C. § 2012(n)(1)(B) ....................................................................................................... 59 8 U.S.C. § 1186a(b)(1)(A)(i) ................................................................................................. 59 10 U.S.C. § 654 ................................................................................................................ 27, 32 18 U.S.C. § 228(a)(1) ............................................................................................................. 60 18 U.S.C. § 228(a)(3) ............................................................................................................. 61 18 U.S.C. § 922(g)(8) ............................................................................................................ 61 26 U.S.C. § 1(a) ...................................................................................................................... 11
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26 U.S.C. § 1(b) ..................................................................................................................... 11 26 U.S.C. § 1(c) ...................................................................................................................... 11 26 U.S.C. § 106 ...................................................................................................................... 19 26 U.S.C. § 125 ........................................................................................................................ 8 26 U.S.C. § 3121(u) ............................................................................................................... 19 26 U.S.C. § 3111(b) ............................................................................................................... 19 26 U.S.C. § 6013(a) ............................................................................................................... 11 26 U.S.C. § 7703(b) ........................................................................................................ 59, 60 28 U.S.C. § 1291 ...................................................................................................................... 2 28 U.S.C. § 1331 ...................................................................................................................... 1 28 U.S.C. § 1738C ................................................................................................................... 4 38 U.S.C. § 101(3) ................................................................................................................. 60 38 U.S.C. § 2408 .................................................................................................................... 18 38 U.S.C. § 2408(b)(3) .......................................................................................................... 18 38 U.S.C. § 2408(c) ............................................................................................................... 18 42 U.S.C. § 402 ........................................................................................................................ 9 42 U.S.C. § 402(b) ................................................................................................................... 9 42 U.S.C. § 402(c) ................................................................................................................... 9 42 U.S.C. § 402(e) ................................................................................................................. 10 42 U.S.C. § 402(f) .................................................................................................................. 10
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42 U.S.C. § 402(f)(1) ............................................................................................................. 10 42 U.S.C. § 402(f)(3) ............................................................................................................. 10 42 U.S.C. § 402(i) .................................................................................................................. 10 42 U.S.C. § 413(a) ............................................................................................................. 9, 10 42 U.S.C. § 414 ........................................................................................................................ 9 42 U.S.C. § 414(a) ................................................................................................................. 10 42 U.S.C. § 414(b) ................................................................................................................. 10 42 U.S.C. § 415 ........................................................................................................................ 9 42 U.S.C. § 416(a)-(g) ........................................................................................................... 60 42 U.S.C. § 901 ........................................................................................................................ 9 42 U.S.C. § 902 ........................................................................................................................ 9 42 U.S.C. §§ 1396 et seq ......................................................................................................... 15 42 U.S.C. § 1396a(a) ............................................................................................................. 15 42 U.S.C. § 1396a(a)(1) et seq. .............................................................................................. 16 42 U.S.C. § 1396a(a)(17) ....................................................................................................... 16 42 U.S.C. § 1396b(a)(1) .................................................................................................. 15, 16 42 U.S.C. § 1396d(b) ....................................................................................................... 15, 16 Ch. 29, § 3, 39 Stat. 874 (1917) ........................................................................................... 32 Pub. L. No. 101-649, 104 Stat. 4978 .................................................................................. 33 111 P.L. 321, 124 Stat. 3515 (2010) .................................................................................... 32
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Mass. Gen. Laws ch. 118E, § 61 ......................................................................................... 16 Public Statute Laws of the State of Connecticut,
1808 tit. LXVI, ch. 1, § 2 (enacted Dec. 1, 1642; revised 1750) .............................. 29 Orders: Exec. Order No. 10450, 3 C.F.R. 936 (1953) ................................................................... 30 Regulations: 5 C.F.R. § 890.301(f) ............................................................................................................... 7 5 C.F.R. § 890.301(g) .............................................................................................................. 7 5 C.F.R. § 890.303 ................................................................................................................... 7 5 C.F.R. § 894.201(b) .............................................................................................................. 8 5 C.F.R. § 894.509(a) .............................................................................................................. 8 5 C.F.R. § 894.509(b) .............................................................................................................. 8 8 C.F.R. § 216.3 ..................................................................................................................... 59 26 C.F.R. § 1.106-1 ............................................................................................................... 19 38 C.F.R. § 39 ....................................................................................................................... 18 38 C.F.R. § 39.10(a) .............................................................................................................. 18 38 C.F.R. § 39.10(c) .............................................................................................................. 18 42 C.F.R. §§ 430.0 et seq ........................................................................................................ 15 18 Fed. Reg. 2489 (Apr. 29, 1953) ...................................................................................... 30 68 Fed. Reg. 56,525 (Oct. 1, 2003) ....................................................................................... 6
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71 Fed. Reg. 66,827, 66,827 (Nov. 17, 2006) ...................................................................... 6
Rules:
Fed. R. App. P. 4(a)(1) .......................................................................................................... 1
Legislative Materials:
Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 (81st Congress), December 15, 1950 ....... 30
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ........................................ 46, 47, 48, 49, 50, 51, 52
H.R. Rep. 111-86 (2009) ...................................................................................................... 38
Other Authorities:
A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times (Nov. 3, 2010) ........................................................................................... 42
Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf ........................ 40
American Academy of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement (2009), available at http://www.aacap.org/cs/root/policy_statements/ gay_lesbian_transgender_and_bisexual_parents_policy_statement ....................... 50
American Academy of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents (Feb. 2002), available at http://aappolicy.aappublications.org/cgi/content/ full/pediatrics;109/2/339 .............................................................................................. 50
American Medical Association, AMA Policy Regarding Sexual Orientation, available at http://www.ama-assn.org/ama/pub/about-ama/our-people/ member-groupssections/glbt-advisory-committee/
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ama-policy-regarding-sexual-orientation.shtml .......................................................... 51
American Psychological Association, Sexual Orientation, Parents, & Children (July 2004), available at http://www.apa.org/about/governance/council/policy/parenting.aspx ............. 50
Bob Barr, No Defending the Defense of Marriage Act, L.A. Times (Jan. 5, 2009), available at http://www.latimes.com/news/politics/newsletter/ la-oe-barr5-2009jan05,0,2810156.story?track=newslettertext .................................. 46
Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, available at http://www.cwla .org/programs/culture/glbtqposition.htm ................................. 51
Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law, 84 Chi. Kent L. Rev. 345 (2009) .................................................................... 37
Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221 (1994) ........................................................ 40
Edward L. Tulin, Note, Where Everything Old Is New Again—Enduring Episodic Discrimination Against Homosexual Persons, 84 Tex. L. Rev. 1587 (2006) .......................................................................................... 31
Florida State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and Citizenship in Florida (1964) .................................................. 36
G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf ............. 39
Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender? (April 2011), available at http://www3.law.ucla.edu/williamsinstitute/pdf/ How-many-people-are-LGBT-Final.pdf ..................................................................... 42
Gay rights referendum in Oregon, Washington Post (May 11, 1978 ) ................................... 37
General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (Mar. 1995) ........................................................................... 31, 32
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Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011) ................................. 4
Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431 (1992) ..................................................................................... 38
Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620 (1975) ................................................................................... 44
National Cemetery Administration Directive 3210/1 (June 4, 2008) ........................... 18
National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=16430 (last updated July 2011) ............ 42
Patricia Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551(1993) ............................................................................................. 30
Rebecca Mae Salokar, Note, Gay and Lesbian Parenting in Florida: Family Creation Around the Law, 4 Fla. Int’l. U. L. Rev. 473 (2009) ..................................................... 37
Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973) ............................................... 44
Richard A. Posner, Sex and Reason (1992) ...................................................................... 40
Robert Wintemute, Sexual Orientation and Human Rights (1995) .............................. 42
Settlement in gay bar raid, N.Y. Times (Mar. 23, 2011) ....................................................... 36
State of Tennessee, Public Chapter No. 278, available at http://state.tn.us/sos/acts/107/pub/pc0278.pdf .................................................... 37
Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159(1982) ................................................ 36
White House, Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010 (Dec. 22, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/22/ remarks-president-and-vice-president-signing-dont-ask-dont-tell-repeal-a ........... 45
- xvi -

Why tide is turning against homosexuals, U.S. News & World Report (June 5, 1978) ....... 37 William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the
Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703 (1997) ................................................... 35 Williams Institute, “Documenting Discrimination on the Basis of
Sexual Orientation and Gender Identity in State Employment” available at http://www.law.ucla.edu/williamsinstitute/programs/ EmploymentReports_ENDA .................................................................... 31, 32, 33, 38
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
________________________________
COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants-Appellants. __________________________________________
DEAN HARA, Plaintiff-Appellee/Cross-Appellant,
NANCY GILL, et al., Plaintiffs-Appellees, v.
OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees.
__________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
__________________________________________
SUPERSEDING BRIEF FOR THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.
__________________________________________
STATEMENT OF JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C. § 1331. Following the
district court’s entry of final judgment in each case, the United States filed timely notices
of appeal in both cases on October 12, 2010. Joint Appendix (“JA”) 677, 1426; see Fed.

R. App. P. 4(a)(1). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES
1. Whether Section 3 of the Defense of Marriage Act is consistent with the equal protection component of the Fifth Amendment Due Process Clause.
2. Whether Section 3 of the Defense of Marriage Act exceeds federal authority under the Spending Clause.
3. Whether Section 3 of the Defense of Marriage Act violates state sovereignty under the Tenth Amendment.
STATUTES AND REGULATIONS The relevant statutory provisions are included in the addendum.
STATEMENT OF THE CASE This case involves the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) as applied to the plaintiffs in these two cases. Plaintiffs in Gill v. Office of Personnel Management are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts. Plaintiff in Massachusetts v. HHS is the Commonwealth of Massachusetts. The plaintiffs in Gill allege that they have been denied the benefits of certain federal statutes because of DOMA. They contend that this denial violates the equal protection component of the Due Process Clause. Massachusetts alleges that it may be required to repay or will be denied the benefit of certain federal funding programs
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because of DOMA and that it is negatively impacted as an employer by federal tax code provisions that are affected by DOMA. Massachusetts contends that these effects violate the Spending Clause, Art. I, § 8, cl. 1, by imposing an unconstitutionally discriminatory condition on its receipt of federal funds and by not being sufficiently germane to the spending programs at issue, and the Tenth Amendment, by intruding on core areas of state sovereignty.
The district court held DOMA unconstitutional on three grounds: that DOMA (1) violated the equal protection component of the Due Process Clause because it lacked a rational basis; (2) exceeded Congress’s authority under the Spending Clause because it was unconstitutional under the Due Process Clause; and (3) violated the Tenth Amendment because it imposed on an area of regulation historically left to the states. These appeals followed.
On January 20, 2011, federal defendants filed a consolidated opening brief as appellants in these cases, defending Section 3 of DOMA against plaintiffs’ equal protection challenges under the rational basis standard of review as well as defending against Massachusetts’s germaneness and Tenth Amendment challenges to the statute. On February 23, 2011, the President and Attorney General notified Congress of their determination that Section 3 of DOMA is unconstitutional as applied to legally married same-sex couples, and the Attorney General instructed Department of Justice attorneys “to advise courts in [] pending DOMA litigation of the President’s and my conclusions
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that a heightened standard should apply, [and] that Section 3 is unconstitutional under that standard[.]” Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011), at 6. Based on this decision, the President and the Attorney General determined that “the Department will cease defense of Section 3.” Id.
On May 20, 2011, the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) moved to intervene in these cases. On June 2, 2011, the Department moved to withdraw its opening brief, and on July 16, 2011, this Court granted the BLAG’s intervention motion, denied the Department’s motion to withdraw its brief but allowed the Department to file a superseding brief, and set a briefing schedule for these cases. On August 23, 2011, this Court denied plaintiffs’ petition for initial rehearing en banc and reset the briefing schedule.
STATEMENT OF THE FACTS I. Statutory Background
The Defense of Marriage Act (“DOMA”) was enacted by Congress in 1996. DOMA has two main provisions. Section 2 of DOMA provides that no state is required to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws. 28 U.S.C. § 1738C. Section 3 of DOMA defines the terms “marriage” and “spouse” for purposes of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United
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States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. Section 3 thereby excludes same-sex relationships from the definition of marriage or spouse for purposes of federal law, even if that relationship is fully recognized under state law. Only Section 3 is at issue in these two cases. II. Facts and Prior Proceedings A. Gill v . O ffic e o f Pe rs o n n e l Man ag e m e n t
1. Factual Background The plaintiffs in Gill are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses to whom they were married in Massachusetts. They contend that DOMA Section 3 violates the equal protection component of the Fifth Amendment Due Process Clause. The plaintiffs claim that, as a result of Section 3, they have been denied certain federal benefits that turn on marital status and that are available to married opposite-sex couples or survivors of opposite-sex spouses.1 Different Gill plaintiffs claim they are harmed by decisions relating to different federal programs. i. First, several plaintiffs seek benefits under three health benefits programs for federal employees and their family members and/or programs for workers’ retirement and survivors’ benefits. These three programs are the Federal Employees Health
1 Plaintiffs alternatively claimed before the district court that the Federal Employees Health Benefits Program statute confers on the Office of Personnel Management the discretion to extend health benefits to same-sex spouses. The district court denied this claim and plaintiffs have not appealed, so that issue is not before this Court.
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Benefits Program (“FEHBP”), the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), and the United States Postal Service’s flexible spending account program (“FSA”).2 The first two programs are administered by the Office of Personnel Management (“OPM”).
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks (1) to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self-and-family enrollment in the FEHBP; (2) to add Ms. Letourneau to FEDVIP; and (3) to use her flexible spending account for Ms. Letourneau’s medical expenses. JA 711 (Gill Compl. ¶ 6). Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHBP to a “self and family” enrollment to include his spouse, James Fitzgerald. Id. And plaintiff Dean Hara seeks enrollment in the FEHBP as the survivor of his spouse, former United States Representative Gerry Studds. Id.
a. The FEHBP is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members. 5 U.S.C. § 8905. Premiums in the FEHBP are paid by both the government and the enrollees. Id. § 8906. Generally, an enrollee in the FEHBP chooses the carrier
2 The plaintiffs initially challenged the federal Flexible Spending Account program administered by the Office of Personnel Management (“OPM”), but that claim was later amended to refer to the Postal Service’s program. The OPM program does not apply to “[c]ertain executive branch agencies with independent compensation authority,” including the Postal Service, which had already “established their own flexible benefits plans.” 71 Fed. Reg. 66,827, 66,827 (Nov. 17, 2006); 68 Fed. Reg. 56,525 (Oct. 1, 2003).
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and plan in which to enroll, as well as whether to enroll for individual (“self only”) coverage or for “self and family” coverage. An enrollee can change this choice during federal “open season” or following a change in family status, “including a change in marital status.” Id. §§ 8905, 8906; 5 C.F.R. § 890.301(f), (g).
An “annuitant” eligible for coverage under FEHBP is, generally, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 5 U.S.C. § 8901(3)(B). When a federal employee or annuitant under “self and family” enrollment in FEHBP dies, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 5 C.F.R. § 890.303.
Thus, to be covered under FEHBP, anyone who is not a current federal employee or the family member of a current employee must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. A “member of family,” for the purposes of eligibility for coverage as an annuitant or for coverage under “self and family” enrollment, is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child . . . .” 5 U.S.C. § 8901(5). DOMA Section 3 prevents persons who, under state law, are same-sex spouses, or surviving same-sex spouses, of federal employees from receiving FEHBP coverage that they would be entitled to if they were or had been a member of an opposite-sex marriage with a federal employee.
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b. FEDVIP provides enhanced dental and/or vision coverage for federal civilian employees, annuitants, and their family members to supplement health insurance coverage under FEHBP. 5 U.S.C. §§ 8951, 8952, 8981, 8982. Persons enrolled in FEDVIP pay 100% of the premiums. Id. §§ 8958(a), 8988(a).
As with FEHBP, an enrollee in FEDVIP chooses the carrier and plan in which to enroll, as well as whether to enroll for “self only,” “self plus one,” or “self and family” coverage, and the enrollee can change this choice during federal “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” Id. §§ 8956(a), 8986(a); see 5 C.F.R. §§ 894.201(b), 894.509(a), (b). “Annuitant” and “member of family” have the same meanings in FEDVIP as they do in FEHBP. 5 U.S.C. §§ 8951(2), 8981(2). Thus, DOMA Section 3 prevents same-sex spouses or survivors of same-sex spouses under state law from receiving FEDVIP coverage they would be entitled to if they were or had been a member of an opposite-sex marriage with a federal employee.
c. The Postal Service’s FSA allows employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses for themselves and their family members, including spouses. The money withheld for flexible spending accounts is not subject to income taxes. 26 U.S.C. § 125. DOMA Section 3 prevents same-sex spouses or survivors of same-sex spouses from receiving the FSA tax benefits they would be able to receive if they were or had been a member of an opposite-sex marriage.
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ii. Second, some of the Gill plaintiffs seek benefits under the Social Security Act (“the Act”). The Act provides for, among other things, Retirement Benefits and Survivors’ Benefits for eligible persons. The Act is administered by the Social Security Administration, headed by the defendant Commissioner of Social Security. 42 U.S.C. §§ 901, 902.
A number of the plaintiffs in this action seek certain benefits under the Act, based on marriage to a same-sex spouse. Plaintiff Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. JA 712–13 (Gill Compl. ¶ 8). Three of the plaintiffs—Dean Hara, Randell Lewis-Kendell, and Herbert Burtis—seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. Id. Plaintiff Herbert Burtis also seeks Widower’s Insurance Benefits. Id.
a. The availability and amount of Social Security Retirement Benefits depend on an individual’s lifetime earnings in employment or self-employment. 42 U.S.C. §§ 402, 413(a), 414, 415. An individual can also seek retirement benefits based on the earnings of a husband or wife, called Husband’s or Wife’s Insurance Benefits, if the individual claiming the benefits “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [her husband or his wife].” Id. § 402(b), (c). DOMA Section 3 does not allow same-sex spouses to claim
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such Husband’s or Wife’s Insurance Benefits. b. The Act also provides some benefits to the surviving spouse of a wage earner.
First, the Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who has an adequate level of earnings from employment or self-employment. Id. §§ 402(i), 413(a), 414(a), (b). The amount of the benefit is $255 or an amount based on the individual’s earnings, whichever is smaller. Id. §§ 402(i), 415(a). Second, the Widower’s Insurance Benefit3 is available to the surviving husband of an individual who has an adequate level of earnings from employment or self-employment. Id. §§ 402(f), 413(a), 414(a), (b). The claimant, among other requirements, must not have “married” since the death of the individual (with some exceptions), must have attained the age set forth in the statute, and must be either “not entitled to old-age insurance benefits [on his own account], or . . . entitled to old-age insurance benefits each of which is less than the primary insurance amount . . . of such deceased individual . . . .” Id. § 402(f)(1); see id. § 402(f)(3). DOMA Section 3 does not allow survivors of same-sex spouses to claim the Lump-Sum Death Benefit or the Widower’s (or Widow’s) Insurance Benefit.
iii. Third, some of the Gill plaintiffs seek to file their federal income tax returns under a certain filing status. JA 711–12 (Gill Compl. ¶ 7). Under the Internal Revenue
3 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C.§ 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits in Gill is male (Herbert Burtis). Although not relevant to this litigation, that provision is similarly affected by DOMA.
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Code, the income tax imposed on an individual depends partly on the taxpayer’s “filing status.” A “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”). DOMA Section 3 prevents same-sex married couples from filing joint tax returns.
2. Prior Proceedings The Gill plaintiffs brought this suit in the district court, asking the district court to strike down DOMA as unconstitutional as applied to them or hold that it provided OPM with discretion to enroll them in the various plans at issue, and requesting various forms of equitable relief against the government. JA 709–825 (Gill Compl.). The government moved to dismiss the complaint, and the plaintiffs moved for summary judgment. JA 826, 828 (Gill Def. MTD; Gill Pl. MSJ). Given the absence of disputed facts, the district court resolved both motions together and, on July 8, 2010, granted summary judgment to all but one of the plaintiffs, Dean Hara. JA 1368 (Gill Op.). The district court first dismissed for lack of standing the FEHBP claim of plaintiff Hara (but not his other claims). JA 1382–83 (Gill Op. 15–16). Hara had previously sought to enroll in the FEHBP as a survivor annuitant based on his deceased spouse’s federal employment. Id. OPM found Hara ineligible for a survivor annuity both on
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initial review and on reconsideration, and the Merit Systems Review Board affirmed OPM’s denial. JA 1383 (Gill Op. 16). Hara appealed that decision to the Federal Circuit,4 which has stayed that case pending the outcome of this action. Id. The district court held that it could not redress Hara’s inability to enroll in the FEHBP as an annuitant because, unless and until he is declared eligible for a survivor annuity, he will remain ineligible for FEHBP enrollment regardless of the DOMA provision challenged in this suit. Id.
The district court also rejected the plaintiffs’ alternative argument that the FEHBP statute conferred discretion on OPM to extend health benefits to same-sex spouses, holding that the text of FEHBP is unambiguous on this issue.5 JA 1384–86 (Gill Op. 17–19).
The district court then held that DOMA Section 3 violates the equal protection component of the Fifth Amendment Due Process Clause. Because the district court found that Section 3 could not even satisfy rational basis scrutiny, the court did not need to reach plaintiffs’ claim that heightened scrutiny should apply. In reaching the conclusion that Section 3 fails rational basis, the district court first rejected four governmental interests it identified as purported support for DOMA, which the
4 See Hara v. OPM, No. 09-3134 (Fed. Cir.). 5 The plaintiffs have not appealed this issue, so it is not before this Court.
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government has not advanced in this litigation.6 The court then rejected other interests articulated by the government in this litigation, holding that neither preserving the status quo pending the resolution of a contentious societal debate on whether same-sex couples should enjoy equal access to the protections and benefits of marriage nor preserving the uniform application of federal programs across states is a legitimate interest supporting the statute. The court reasoned that “the subject of domestic relations is the exclusive province of the states,” and therefore that Congress has no interest in defining “marriage for purposes of determining federal rights, benefits, and privileges” because, in the district court’s view, the ability to define the terms “marriage” and “spouse” for the purposes of federal law is, constitutionally, the exclusive province of the states. JA 1395–98 (Gill Op. 28–31).
The court further held that, even if they represent valid congressional interests, the status quo and uniformity rationales are not sufficiently connected to DOMA Section 3 to support its constitutionality. With respect to the status quo rationale, the court found that the legal status quo prior to DOMA’s enactment was incorporation of state marriage law and that, regardless, simply preserving the status quo—without a reason for doing so—is not a rational basis for legislating. JA 1399–1400 (Gill Op. 32–33). With respect to the uniformity rationale, the court noted that DOMA does not impose
6 The district court described those interests as “(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.” JA 1390 (Gill Op. 23).
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uniformity on every aspect of state marriage law and that therefore uniformity cannot be a rationale for upholding the statute. JA 1400–01 (Gill Op. 33–34). Finally, the court held that, even if there were a legitimate interest in uniformity and a rational relationship between the statute and that interest, the fit would not be sufficiently close to survive scrutiny because the minor uniformity created by the statute is outweighed by the significant “disadvantage [to] a group of which [Congress] disapproves.” JA 1405 (Gill Op. 38).
On August 12, 2010, the district court entered final judgment for plaintiffs, enjoining application of DOMA Section 3 to the plaintiffs. JA 1407 (Gill Judgment). On August 17, 2010, following a joint motion for a stay, the district court entered an amended final judgment and a stay pending appeal. JA 1419–24 (Gill Amended Judgment). On October 12, 2010, the government timely appealed. JA 1426 (Gill Notice of Appeal). On October 13, 2010, plaintiff Hara timely cross-appealed the district court’s dismissal of his FEHB claim for lack of standing. JA 1428 (Gill Notice of Cross-Appeal).
B. Mas s ac h u s e tts v . HHS 1. Factual Background
Plaintiff, the Commonwealth of Massachusetts, contends that Section 3 of DOMA, as applied to various federal funding programs in which that state participates, violates two constitutional provisions: (1) the Spending Clause, by forcing the state to
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discriminate or lose federal funding and by not being sufficiently related to federal funding programs; and (2) the Tenth Amendment, by intruding in an area reserved exclusively to state authority. Specifically, the state alleges that it is at risk of losing some federal funding under Medicaid and for veterans’ cemeteries, and that it is required to pay extra Medicare taxes for health benefits that it provides to same-sex spouses of state employees.
In detail, the three federal programs at issue are as follows: i. Medicaid is a cooperative federal-state public assistance program that provides federal financial participation to states that elect to pay for medical services on behalf of certain needy individuals. 42 U.S.C. §§ 1396 et seq.; 42 C.F.R. §§ 430.0 et seq. Participation is voluntary, but once a state elects to participate, it must comply with the requirements of the Medicaid statute and regulations promulgated by the Secretary of Health and Human Services. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990). To qualify for federal financial participation, a participating state must submit to the Secretary, and have approved, a state “plan for medical assistance” that describes the nature and scope of the state program. 42 U.S.C. § 1396a(a). If the state plan is approved by the Secretary, the state is thereafter eligible to receive matching payments from the federal government of the amounts “expended . . . as medical assistance under the State plan.” 42 U.S.C. §§ 1396b(a)(1), 1396d(b). Congress has established a number of requirements that must be met for a state
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Medicaid plan to be approved and receive federal funds. 42 U.S.C. §§ 1396a(a)(1) et seq. Federal matching payments are not available to states with respect to individuals who do not meet the applicable Medicaid eligibility requirements, either by reason of their income levels or for other reasons, so if states make services available to these individuals, the services are not federally reimbursed. 42 U.S.C. §§ 1396b(a)(1), 1396d(b). An individual’s status as a “spouse,” as defined under federal law, may be relevant to that individual’s eligibility for Medicaid. For example, in determining income, a
[s]tate plan for medical assistance must . . . include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual’s spouse or such individual’s child who is under age 21 . . . . 42 U.S.C. § 1396a(a)(17). MassHealth is Massachusetts’s Medicaid program. JA 25 (Mass. Compl. ¶¶ 46–47). Under state law, “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under [MassHealth] . . . due to the provisions of 1 U.S.C. § 7 or any other federal non-recognition of spouses of the same sex.” Mass. Gen. Laws ch. 118E, § 61. For this reason, despite the effects of DOMA, Massachusetts considers individuals in same-sex marriages to be married for purposes of its Medicaid scheme. JA 27–28 (Mass. Compl. ¶¶ 56–59). The state’s statute has two different and opposing financial effects. In some
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circumstances, the recognition of marriages between same-sex couples can lead to the denial of health benefits for one or both partners because the incomes of both spouses are combined to determine household income for purposes of Medicaid eligibility. JA 28–29 (Mass. Compl. ¶ 61). Because federal law does not recognize marriages of samesex couples, Massachusetts saves money by not following DOMA in these instances. In other circumstances, however, the recognition of a same-sex couple’s marriage can render one or both partners eligible for benefits they would not otherwise receive. That occurs because the income ceiling for Medicaid eligibility is higher for a married couple than for a single individual.
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single individuals pursuant to DOMA. JA 28–29 (Mass. Compl. ¶ 61). Correspondingly, MassHealth provides coverage to partners in same-sex marriages who would not be eligible if treated as single individuals, as required by DOMA. JA 28 (Mass. Compl. ¶ 59). Massachusetts claims that it has not sought federal matching payments with respect to these individuals because it fears federal enforcement of DOMA and the loss of federal funds if the Department of Health and Human Services (“HHS”) determines that MassHealth is not in compliance with federal law. JA 28–29 (Mass. Compl. ¶¶ 59–62).
ii. Under the State Cemetery Grants Program, the Department of Veterans Affairs (“VA”) provides federal funding for the establishment, expansion, and improvement, or
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operation and maintenance, of veterans’ cemeteries owned and operated by a state. 38 U.S.C. § 2408; 38 C.F.R. § 39. Massachusetts has received three grants totaling over $19 million for its two cemeteries. JA 31 (Mass. Compl. ¶ 71).
Federal funding for veterans’ cemeteries is conditioned on compliance with VA regulations, 38 U.S.C. § 2408(c), which include the condition that cemeteries “must be operated solely for the interment of veterans, their spouses, [and] surviving spouses[.]” 38 C.F.R. § 39.10(a). Because, under DOMA Section 3, same-sex spouses are not considered “spouses,” VA would be “entitled,” but not required, to recover any grant funds paid to a state for a veterans’ cemetery under the State Cemetery Grants Program if the state “ceases to operate such cemetery as a veterans’ cemetery” by burying the same-sex spouse of a veteran at such cemetery. See 38 U.S.C. § 2408(b)(3); see also 38 C.F.R. § 39.10(c). The National Cemetery Administration, which is part of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” National Cemetery Administration Directive 3210/1 (June 4, 2008).7 Nonetheless, the Commonwealth authorized the burial of the same-sex spouse of a veteran. JA 32 (Mass. Compl. ¶ 77). The spouse, who is still living, is not otherwise eligible for burial in a veterans’ cemetery. Mass. Compl. ¶ 77. Massachusetts alleges that,
7 Available at http://www.dva.wa.gov/PDF%20files/3210-1_Directive.pdf. - 18 -

if either of its two cemeteries ceases to be operated as a veterans’ cemetery, VA can recapture from the state any funds provided for its construction, expansion, or improvement. JA 32 (Mass. Compl. ¶ 79).
iii. Under federal law, health care benefits provided by an employer to an employee’s spouse are generally excluded from that employee’s taxable income. 26 U.S.C. § 106; 26 C.F.R. § 1.106-1. Because, under DOMA Section 3, same-sex spouses are not considered “spouses,” health care benefits provided to them by an employer are not excluded from an employee’s taxable income and must be imputed as extra income to the employee for federal tax withholding purposes.
As an employer, Massachusetts is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income. 26 U.S.C. §§ 3121(u), 3111(b). Massachusetts provides health care benefits to the samesex spouses of its employees, and, because these benefits are not exempted from taxes, the state must pay this Medicare tax for the value of the health benefits provided to the same-sex spouses that it does not need to pay for the value of health benefits provided to the opposite-sex spouses of its employees. JA 24–25 (Mass. Compl. ¶ 42–44). The state has also had to create and implement systems to identify insurance enrollees who provide health care coverage to their same-sex spouses, as well as to calculate the value of such coverage, so the state can keep track of this tax. JA 24–25 (Mass. Compl. ¶ 44).
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2. Prior Proceedings Massachusetts brought this suit in the district court, asking the court to strike down DOMA as unconstitutional as applied to Massachusetts. JA 12–37 (Mass. Compl.). The federal government moved to dismiss, and Massachusetts moved for summary judgment. JA 59, 62. Given the absence of disputed facts, the district court resolved both motions together and, on July 8, 2010, granted summary judgment to Massachusetts. JA 634–69 (Mass. Op.). The district court held that DOMA exceeds federal authority under the Spending Clause and violates the Tenth Amendment.8 The district court first held that “DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples,” which the district court had held in Gill violated the equal protection component of the Due Process Clause. JA 660 (Mass. Op. 27). As a result, the court held that, “as DOMA imposes an unconstitutional condition on the receipt of federal funding, . . . the statute contravenes a well-established restriction on the exercise of Congress’ spending power.” Id. The district court did not reach Massachusetts’s
8 The district court also rejected the government’s argument that Massachusetts lacked standing because the government had never acted to recoup funds from Massachusetts under the State Cemetery Grants Program or Medicaid. The district court found the record “replete” with evidence that VA and HHS had asserted a right to recapture these funds, and that, as to Medicaid, the state had already given up significant federal funding to follow its state marriage law. JA 652–54 (Mass. Op. 19–21). The government is not appealing this ruling.
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assertion that DOMA also violates the Spending Clause because it is not sufficiently related to federal funding programs. JA 660–61 (Mass. Op. 27–28).
The district court then alternatively held that DOMA violates the Tenth Amendment because it (1) “regulate[s] the States as States”; (2) “concern[s] attributes of state sovereignty”; and (3) is of “such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions,” JA 661 (Mass. Op. 28), applying the test from National League of Cities v. Usery, 426 U.S. 833 (1976). In so holding, the district court observed that there was a “historically entrenched tradition of federal reliance on state marital status determinations.” JA 662–65 (Mass. Op. 29–32).
On August 12, 2010, the district court entered final judgment for Massachusetts, enjoining application of DOMA to Massachusetts. JA 670 (Mass. Judgment). On August 24, 2010, following a joint motion for a stay, the district court entered a stay pending appeal. JA 676 (Mass. Stay Order). On October 12, 2010, the government timely appealed. JA 677 (Mass. Notice of Appeal).
SUMMARY OF ARGUMENT Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under the well-established factors set
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forth by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.
The Supreme Court has yet to determine the appropriate level of scrutiny for classifications based on sexual orientation, but it has established a set of factors to guide whether heightened scrutiny applies to a specific group: (1) whether the group in question has suffered a history of discrimination; (2) whether members of the group “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–41 (1985). Careful consideration of these factors demonstrates that sexual orientation classifications should be subject to heightened scrutiny.
The Department has acknowledged in its superseded opening brief on file with this Court, as well as in its response to the petition for initial hearing en banc, that binding authority of this circuit holds that rational basis review applies to classifications based on sexual orientation, see Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008). We respectfully submit that Cook does not withstand scrutiny, as we explain infra. The Cook
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decision fails to account for the factors identified by the Supreme Court as relevant to the inquiry, and the Supreme Court has yet to rule on the appropriate level of scrutiny. While recognizing existing circuit precedent, the Department submits this superseding brief to provide a full explanation of its view of how these consolidated cases should ultimately be decided.
Accordingly, heightened scrutiny should be applied to Section 3 of DOMA, and the statute is unconstitutional under that level of review. Congress’s announced rationales in enacting Section 3 fall short of meeting heightened scrutiny, and the legislative record contains numerous expressions of the type of stereotype-based thinking and animus that the Constitution’s equal protection guarantee is designed to guard against.
In sum, this Court’s precedent applying rational basis review to classifications based on sexual orientation should be reconsidered, and the district court’s judgments should be affirmed on the ground that Section 3 of DOMA is subject to heightened scrutiny and, under that standard, is unconstitutional as applied to same-sex couples married under state law. If this Court concludes that Section 3 violates equal protection, it must also conclude that Section 3 is not authorized by the Spending Clause. In that event, this Court need not reach the other issues presented by these cases.
However, if this Court holds that Section 3 does not violate equal protection, it should reverse the district court’s ruling on the Tenth Amendment challenge presented
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by Massachusetts. The Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power,” United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997). In the event that this Court holds that Section 3 does not violate equal protection and therefore represents a valid exercise of Congress’s Spending Clause authority, it plainly does not violate the Tenth Amendment.
STANDARD OF REVIEW This Court reviews de novo challenges to the constitutionality of a federal statute. United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010).
ARGUMENT I. DOMA Violates Equal Protection.
The Constitution’s guarantee of equal protection of the laws, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954); Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008), embodies a fundamental requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). DOMA Section 3 is inconsistent with that principle of equality, as it denies legally married samesex couples federal benefits that are available to similarly situated opposite-sex couples.
For the reasons set forth below, heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual
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orientation. Under that more rigorous standard, Section 3 of DOMA cannot pass constitutional muster.
A. Plaintiffs’ Equal Protection Challenge to DOMA Is Subject to Heightened Scrutiny under Supreme Court Precedent.
As a general rule, legislation challenged under equal protection principles is presumed valid and sustained as long as the “classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440. “[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the [government] has the authority to implement,” courts will not “closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Id. at 441–42. Where, however, legislation classifies on the basis of a factor that “generally provides no sensible ground for differential treatment,” such as race or gender, the law demands more searching review and imposes a greater burden on the government to justify the classification. Id. at 440–41.
Such suspect or quasi-suspect classifications are reviewed under a standard of heightened scrutiny, under which the government must show, at a minimum, that a law is “substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). This more searching review enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and serves to prevent implementation of classifications that are the product of impermissible prejudice or stereotypes. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)
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(plurality opinion); United States v. Virginia (“VMI”), 518 U.S. 515, 533 (1996).
The Supreme Court has yet to rule on the appropriate level of scrutiny for
classifications based on sexual orientation.9 It has, however, established and repeatedly
confirmed a set of factors that guide the determination of whether heightened scrutiny
applies to a classification that singles out a particular group. These include: (1) whether
the group in question has suffered a history of discrimination; (2) whether members of
the group “exhibit obvious, immutable, or distinguishing characteristics that define them
as a discrete group”; (3) whether the group is a minority or is politically powerless; and
(4) whether the characteristics distinguishing the group have little relation to legitimate
policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen
9 In neither Romer v. Evans, 517 U.S. 620 (1996), nor Lawrence v. Texas, 539 U.S. 558 (2003), did the Supreme Court opine on the applicability of heightened scrutiny to sexual orientation. In both cases, the Court invalidated sexual orientation classifications under a more permissive standard of review without having to decide whether heightened scrutiny applied (Romer found that the legislation failed rational basis review, 517 U.S. at 634–35; Lawrence found the law invalid under the Due Process Clause, 539 U.S. at 574–75).
Nor did the Court decide the question in its one line per curiam order in Baker v. Nelson, 409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying marriage status to a same-sex couple, id. at 810. Baker did not concern the constitutionality of a federal law, like DOMA Section 3, that distinguishes among couples who are already legally married in their own states, and was motivated by animus toward gay and lesbian people. See infra Part I.B. Moreover, neither the Minnesota Supreme Court decision, Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), nor the questions presented in the plaintiffs’ jurisdictional statement raised whether classifications based on sexual orientation are subject to heightened scrutiny, see Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Sup. Ct.), at 2; see also id. at 13 (repeatedly describing equal protection challenge as based on the “arbitrary” nature of the state law). There is no indication in the Court’s order that the Court nevertheless considered, much less resolved, that question.
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v. Gilliard, 483 U.S. 587, 602–03 (1987); see also Cleburne, 473 U.S. at 441–42. Although there is substantial circuit court authority, including binding authority
of this circuit, holding that rational basis review generally applies to sexual orientation classifications, see, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008), most of these decisions fail to give adequate consideration to these factors. Indeed, the reasoning of this line of case law traces back to circuit court decisions from the late 1980s and early 1990s, a time when Bowers v. Hardwick, 478 U.S. 186 (1986), was still the law. The Supreme Court subsequently overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and the reasoning of these circuit decisions no longer withstands scrutiny.
In Cook, for example, this Court considered an equal protection challenge to 10 U.S.C. § 654, which established the policy concerning homosexuality in the armed forces. 528 F.3d at 45. Plaintiffs contended that, because it classified on the basis of sexual orientation, § 654 should be subject to heightened scrutiny under equal protection principles. Id. at 60. Without invoking the deference due to military judgments, cf. Rostker v. Goldberg, 453 U.S. 57, 70 (1981), this Court concluded that, in the context of equal protection challenges, classifications based on sexual orientation are only subject to rational basis review.10 In so holding, this Court concluded that, because “Romer
10 Cook and a number of cases in other circuits involved challenges to military policy on homosexual conduct. See Cook, 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 565 (9th Cir. 1990); Woodard v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 456 (7th Cir. 1989). Classifications
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nowhere suggested that the Court recognized a new suspect class,” it would apply
rational basis “[a]bsent additional guidance from the Supreme Court.” Id. at 61. As
noted above, Romer did not address the question of what standard of scrutiny applies to
sexual orientation classifications. It therefore cannot serve as a basis for the decision not
to apply heightened scrutiny to classifications based on sexual orientation.11 Careful
consideration of the factors the Supreme Court has identified as relevant to the inquiry
demonstrates that classifications based on sexual orientation should be subject to
heightened scrutiny.
1. Gays and Lesbians Are a Suspect or QuasiSuspect Class under the Relevant Factors Identified by the Supreme Court.
i. Gays and Lesbians Have Been Subject to a History of Discrimination.
in the military context, however, present different questions from classifications in the civilian context, see, e.g., Rostker, 453 U.S. at 70, and the military is not involved here.
11 As noted above, other courts of appeals have held that classifications on the basis of sexual orientation are not subject to heightened scrutiny, but the reasoning of these courts is similarly flawed. One of those courts relied, like this Court in Cook, on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect or quasi-suspect class. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004). Many other courts relied in part or in whole on Bowers. See Equality Found. v. City of Cincinnati, 54 F.3d 261, 266–67 & n.2 (6th Cir. 1995); Steffan, 41 F.3d at 685 n.3; High Tech Gays, 895 F.2d at 571; Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; see also Richenberg, 97 F.3d at 260 (citing to reasoning of prior appellate decisions that were based on Bowers); Thomasson, 80 F.3d at 928 (same). Finally, the remaining courts to address the issue offered no pertinent reasoning in so doing. Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984).
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First, courts have recognized that gay and lesbian individuals have suffered a long and significant history of purposeful discrimination. See High Tech Gays, 895 F.2d at 574 (“[W]e do agree that homosexuals have suffered a history of discrimination . . . .”); see also Ben-Shalom v. Marsh, 881 F.2d 454, 465–66 (7th Cir. 1989) (noting that “[h]omosexuals have suffered a history of discrimination and still do, though possibly now in less degree”). So far as we are aware, no court to consider this question has ever ruled otherwise.
Discrimination against gay and lesbian individuals has a long history in this country, Bowers, 478 U.S. at 192, from colonial laws ordering the death of “any man [that] shall lie with mankind, as he lieth with womankind,” see, e.g., Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, § 2, 294–95 & n.1 (enacted Dec. 1, 1642; revised 1750), to state laws that, until very recently, have “demean[ed] the[] existence” of gay and lesbian people “by making their private sexual conduct a crime,” Lawrence, 539 U.S. at 578. In addition to the discrimination reflected in DOMA itself, as explained below, the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.12
12 We do not understand the Supreme Court to have called into question this well-documented history when it said in Lawrence that “it was not until the 1970’s that any State singled out same-sex relations for criminal prosecution,” 539 U.S. at 570, and that only nine States had done so by the time of Lawrence. The question before the Court in Lawrence was whether, as Bowers had asserted, same-sex sodomy prohibitions were so deeply rooted in history that they could not be understood to contravene the Due Process Clause. That the Court rejected that argument and invalidated Texas’s sodomy
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a. Discrimination by the Federal Government The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals. For years, the federal government deemed gays and lesbians unfit for employment, barring them from federal jobs on the basis of their sexual orientation. See Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 (81st Congress), December 15, 1950, (“Interim Report”), at 9. In 1950, Senate Resolution 280 directed a Senate subcommittee “to make an investigation in the employment by the Government of homosexuals and other sexual perverts.” Patricia Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551 , 1565–66 (1993). The Committee found that from 1947 to 1950, “approximately 1,700 applicants for federal positions were denied employment because they had a record of homosexuality or other sex perversion.” Interim Report at 9. In April 1953, in the wake of the Senate investigation, President Eisenhower issued Executive Order 10450, which officially added “sexual perversion” as a ground for investigation and possible dismissal from federal service. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953); see also 18 Fed. Reg. 2489 (Apr. 29, 1953). The Order expanded the investigations of civilian employees for “sexual perversion” to include every agency
law on due process grounds casts no doubt on the duration and scope of discrimination against gay and lesbian people writ large.
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and department of the federal government, and thus had the effect of requiring the termination of all gay people from federal employment. See General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process, at 2 (Mar. 1995).
The federal government enforced Executive Order 10450 zealously, engaging various agencies in intrusive investigatory techniques to purge gays and lesbians from the federal civilian workforce. The State Department, for example, charged “skilled investigators” with “interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms,” used polygraphs on individuals accused of homosexuality who denied it, and sent inspectors “to every embassy, consulate, and mission” to uncover homosexuality. Edward L. Tulin, Note, Where Everything Old Is New Again—Enduring Episodic Discrimination Against Homosexual Persons, 84 Tex. L. Rev. 1587, 1602 (2006). In order to identify gays and lesbians in the civil service, the FBI “sought out state and local police officers to supply arrest records on morals charges, regardless of whether there were convictions; data on gay bars; lists of other places frequented by homosexuals; and press articles on the largely subterranean gay world.” Williams Institute, “Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment,” ch. 5 at 7, available at http://www.law.ucla.edu/williamsinstitute/programs/EmploymentReports_ENDA. html (“Williams Report”). In the 1950s and early 1960s, the Post Office Department (the predecessor to the Postal Service), for its part, aided the FBI by “establish[ing] a
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watch on the recipients of physique magazines, [those who] subscribed to pen pal clubs, and [those who] initiated correspondence with men whom they believed might be homosexual.” Id. If “their suspicions were confirmed, they then placed tracers on victims’ mail in order to locate other homosexuals.” Id.
The end result was thousands of men and women forced from their federal jobs based on the suspicion that they were gay or lesbian. It was not until 1975 that the Civil Service Commission prohibited discrimination on the basis of sexual orientation in federal civilian hiring. See General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (1995) (describing the federal government’s restrictions on the employment of gay and lesbian individuals).13
The history of the federal government’s discrimination against gays and lesbians extends beyond the employment context. For decades, gay and lesbian noncitizens were categorically barred from entering the United States, on grounds that they were “persons of constitutional psychopathic inferiority,” “mentally defective,” or sexually deviant. Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569, 571–72 (N.D. Cal. 1982) (quoting Ch. 29, § 3, 39 Stat. 874 (1917)), aff’d Hill v. INS, 714 F.2d 1470 (9th Cir. 1983). As the Supreme Court held in Boutilier v. INS, 387 U.S. 118 (1967), “[t]he legislative
13 Open military service by gays and lesbians was prohibited, first by regulation and then by statute, 10 U.S.C. § 654 (2007), until the “Don’t Ask, Don’t Tell” Repeal Act, enacted last year, 111 P.L. 321, 124 Stat. 3515 (2010). Pursuant to the Repeal Act, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certified the repeal on July 22, 2011, and repeal was effective 60 days from that date, on September 20, 2011.
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history of [the Immigration and Nationality Act of 1952] indicates beyond a shadow of a doubt that the Congress intended the phrase ‘psychopathic personality’ to include homosexuals.” Id. at 120. This exclusion remained in effect until Congress repealed it in 1990. See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
b. Discrimination by State and Local Governments Like the federal government, state and local governments have long discriminated against gays and lesbians in public employment. By the 1950s, many state and local governments had banned gay and lesbian employees, as well as gay and lesbian “employees of state funded schools and colleges, and private individuals in professions requiring state licenses.” Williams Report, ch. 5 at 18. Many states and localities began aggressive campaigns to purge gay and lesbian employees from government services as early as the 1940s. Id. at 18–34. This employment discrimination was interrelated with longstanding state law prohibitions on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians had engaged in criminalized and immoral sexual conduct. See, e.g., Childers v. Dallas Police Dep’t, 513 F. Supp. 134, 138, 147–48 (N.D. Tex. 1981) (holding that police could refuse to hire gays), aff’d without opinion, 669 F.2d 732 (5th Cir. 1982); Gaylord v. Tacoma Sch. Dist. No. 10, 559 P.2d 1340, 1342, 1347 (Wash. 1977) (upholding the dismissal of an openly gay school teacher who was fired based on a local school board policy that allowed removal for “immorality”); Burton v. Cascade Sch. Dist. Union
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High Sch., No.5, 512 F.2d 850, 851 (9th Cir. 1975) (upholding the dismissal of a lesbian teacher in Oregon, after adopting a resolution stating that she was being terminated “because of her immorality of being a practicing homosexual”); Bd. of Educ. v. Calderon, 110 Cal. Rptr. 916, 919 (1973) (holding that state sodomy statute was a valid ground for discrimination against gays as teachers); see also Baker v. Wade, 553 F. Supp. 1121, 1128 n.9 (N.D. Tex. 1982) (“A school board member testified that [the defendant] would have been fired [from his teaching position] if there had even been a suspicion that he had violated [the Texas sodomy statute].”), rev’d, 769 F.2d 289 (5th Cir. 1985) (holding that challenged Texas homosexual sodomy law was constitutional). Some of these discriminatory employment policies continued into the 1990s. See Shahar v. Bowers, 114 F.3d 1097, 1105 & n.17, 1107–10 (11th Cir. 1997) (en banc) (upholding Georgia Attorney General’s Office’s rescission of a job offer to plaintiff after she mentioned to co-workers her upcoming wedding to her same-sex partner); City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) (holding unconstitutional Dallas Police Department policy denying gays and lesbians employment).
Based on similar assumptions regarding the criminal sexual conduct of gays and lesbians, states and localities also denied child custody and visitation rights to gay and lesbian parents. See, e.g., Ex parte H.H., 830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring) (concurring in denial of custody to lesbian mother on ground that “[h]omosexual conduct is . . . abhorrent, immoral, detestable, a crime against nature, and
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a violation of the laws of nature and of nature’s God . . . [and] an inherent evil against which children must be protected.”); Pulliam v. Smith, 501 S.E.2d 898, 903–04 (N.C. 1998) (upholding denial of custody to a gay man who had a same-sex partner; emphasizing that father engaged in sexual acts while unmarried and refused to “counsel the children against such conduct”); Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997) (holding that a trial court did not err in granting a father custody of his son on the basis that people in town had rumored that the son’s mother was involved in a lesbian relationship); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (noting that, although the Court had previously held “that a lesbian mother is not per se an unfit parent,” the “[c]onduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth” and therefore “that conduct is another important consideration in determining custody”); Roe v. Roe, 324 S.E.2d 691, 692, 694 (Va. 1985) (holding that father, who was in a same-sex relationship, was “an unfit and improper custodian as a matter of law” because of his “continuous exposure of the child to his immoral and illicit relationship”).
State and local law also has been used to prevent gay and lesbian people from associating freely. Liquor licensing laws, both on their face and through discriminatory enforcement, were long used to harass and shut down establishments patronized by gays and lesbians. See William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961, 24 Fla. St. U. L. Rev. 703, 762–66 (1997) (describing such efforts in New
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York, New Jersey, Michigan, California, and Florida); see also Irvis v. Scott, 318 F. Supp. 1246, 1249 (M.D. Pa. 1970) (describing such efforts in Pennsylvania). State and local police also relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and lesbian people congregated in public. See, e.g., Pryor v. Mun. Court, 599 P.2d 636, 644 (Cal. 1979) (“Three studies of law enforcement in Los Angeles County indicate[d] that the overwhelming majority of arrests for violation of [the ‘lewd or dissolute’ conduct statute] involved male homosexuals.”); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960–1980, 12 Colum. Hum. Rts. L. Rev. 159, 162–64 (1982); Florida State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and Citizenship in Florida, at 14 (1964) (“Many homosexuals are picked up and prosecuted on vagrancy or similar non-specific charges, fined a moderate amount, and then released.”). Similar practices persist to this day. See, e.g., Calhoun v. Pennington, No. 09-3286 (N.D. Ga.) (involving September 2009 raid on Atlanta gay bar and police harassment of patrons); Settlement in gay bar raid, N.Y. Times (Mar. 23, 2011) (involving injuries sustained by gay bar patron during raid by Fort Worth police officers and the Texas Alcoholic Beverage Commission).
Efforts to combat discrimination against gays and lesbians also have led to significant political backlash, as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination. See also infra Part I.A.1.iii. A rash of such initiatives succeeded in the late 1970s. See, e.g.,
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Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law, 84 Chi. Kent L. Rev. 345, 359 (2009) (Boulder, Colorado in 1974); Rebecca Mae Salokar, Note, Gay and Lesbian Parenting in Florida: Family Creation Around the Law, 4 Fla. Int’l. U. L. Rev. 473, 477 (2009) (Dade County, Florida in 1977); St. Paul Citizens for Human Rights v. City Council of the City of St. Paul, 289 N.W.2d 402, 404 (Minn. 1979) (St. Paul, Minnesota in 1978); Gay rights referendum in Oregon, Washington Post (May 11, 1978), at A14 (Wichita, Kansas in 1978); Why tide is turning against homosexuals, U.S. News & World Report (June 5, 1978), at 29 (Eugene, Oregon in 1978). The laws at issue in Romer and in Equality Foundation v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) are just two of a number of more recent examples from the 1990s. In fact, in May 2011, the Tennessee legislature enacted a law stripping counties and municipalities of their ability to pass local non-discrimination ordinances that would prohibit discrimination on the basis of sexual orientation, and repealing the ordinances that had recently been passed by Nashville and other localities.14 Similar responses have followed states’ decisions to recognize same-sex marriages. See infra Part I.A.1.iii.
c. Discrimination by Private Parties Finally, private discrimination against gays and lesbians in employment and other
14 See State of Tennessee, Public Chapter No. 278, available at http://state.tn.us/sos/acts/107/pub/pc0278.pdf.
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areas has been pervasive and continues to this day.15 See, e.g., Williams Report, ch. 5 at 8–9 (explaining that private companies and organizations independently adopted discriminatory employment policies modeled after the federal government’s, and as federal employers shared police and military records on gay and lesbian individuals with private employers, these same persons who were barred from federal employment on the basis of their sexual orientation were simultaneously blacklisted from employment by many private companies). The pervasiveness of private animus against gays and lesbians is underscored by statistics showing that gays and lesbians continue to be among the most frequent victims of all reported hate crimes. See H.R. Rep. 111-86, at 9–10 (2009) (“According to 2007 FBI statistics, hate crimes based on the victim’s sexual orientation—gay, lesbian, or bisexual—constituted the third highest category reported—1,265 incidents, or one-sixth of all reported hate crimes.”); Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431, 1464 (1992).
In sum, gays and lesbians have suffered a long history of discrimination based on prejudice and stereotypes. That history counsels strongly in favor of heightened scrutiny, giving courts ample reason to question whether sexual orientation classifications are the product of hostility rather than a legitimate government purpose.
15 Private discrimination, as well as official discrimination, is relevant to whether a group has suffered a history of discrimination for purposes of the heightened scrutiny inquiry. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) (“[W]omen still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.”).
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ii. Gays and Lesbians Exhibit Immutable Characteristics that Distinguish Them as a Group.
Over ten years ago, in considering whether gays and lesbians constituted a “particular social group” for asylum purposes, the Ninth Circuit recognized that “[s]exual orientation and sexual identity are immutable,” and that “[h]omosexuality is as deeply ingrained as heterosexuality.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (quotation omitted). But see High Tech Gays, 895 F.2d at 573 (stating that sexual orientation is not immutable because “it is behavioral”). Sexual orientation, the Ninth Circuit explained, is “fundamental to one’s identity,” and gay and lesbian individuals “should not be required to abandon” it to gain access to fundamental rights guaranteed to all people. Hernandez-Montiel, 225 F.3d at 1093.
That conclusion is consistent with the overwhelming consensus in the scientific community that sexual orientation is an immutable characteristic. See e.g., G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176–200 (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf (noting that in a national survey conducted with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95 percent of the gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “small amount of choice” about their sexual orientation). There is also a consensus among the established
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medical community that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being.16 See Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (“[E]fforts to change sexual orientation are unlikely to be successful and involve some risk of harm.”); see also Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing “failure of treatment strategies . . . to alter homosexual orientation”); Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221, 226 (1994) (describing “lack of empirical support for conversion therapy”).
Furthermore, sexual orientation need not be a “visible badge” that distinguishes gays and lesbians as a discrete group for the classification to warrant heightened scrutiny. As the Supreme Court has made clear, a classification may be “constitutionally suspect” even if it rests on a characteristic that is not readily visible, such as illegitimacy. Mathews v. Lucas, 427 U.S. 495, 504 (1976); see id. at 506 (noting that “illegitimacy does not carry an obvious badge, as race or sex do,” but nonetheless applying heightened scrutiny). Whether or not gays and lesbians could hide their identities in order to avoid
16 In fact, every major mental health organization has adopted a policy statement cautioning against the use of so-called “conversion” or “reparative” therapies to change the sexual orientation of gays and lesbians. These policy statements are reproduced in a 2008 publication of the American Psychological Association, available at http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf.
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discrimination, they are not required to do so. As the Court has recognized, sexual
orientation is a core aspect of identity, and its expression is an “integral part of human
freedom,” Lawrence, 539 U.S. at 562, 576–77.
iii. Gays and Lesbians Are Minorities with Limited Political Power.
Third, gays and lesbians are a minority group,17 Able v. United States, 968 F. Supp.
850, 863 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998), that has historically lacked
political power. To be sure, many of the forms of historical discrimination described
above have subsided or been repealed. But efforts to combat discrimination have
frequently led to successful initiatives to scale back protections afforded to gay and
lesbian individuals. See also supra Part I.A.1.i.b. As described above, the adoption of
ballot initiatives specifically repealing laws protecting gays and lesbians from
discrimination (including the laws at issue in Romer and Equality Foundation v. City of
Cincinnati) are examples of such responses. In fact, “[f]rom 1974 to 1993, at least 21
referendums were held on the sole question of whether an existing law or executive
17 It is difficult to offer a definitive estimate for the size of the gay and lesbian community in the United States. According to an analysis of various data sources published in April 2011 by the Williams Institute, there appear to be 9 million adults in the United States who are lesbian, gay or bisexual, comprising 3.5 percent of the adult population. See Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender?(April 2011), available at http://www3.law.ucla.edu/williamsinstitute/pdf/ How-many-people-are-LGBT-Final.pdf. Ascertaining the precise percentage of gays and lesbians in the population, however, is not relevant to the analysis, as it is clear that whatever the data reveal, there is no dispute that gays and lesbians constitute a minority in the country.
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order prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21 cases, a majority voted to repeal the law or executive order.” Robert Wintemute, Sexual Orientation and Human Rights 56 (1995).
The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has been followed in the 2000s with similar political backlashes against same-sex marriage. In 1996, at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex couples. National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=16430 (last updated July 2011). Today, thirtyseven states have such statutes, and thirty states have constitutional amendments explicitly restricting marriage to opposite-sex couples. Id.
California and Iowa are recent examples of such backlash. In May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage. In re Marriage Cases, 183 P.3d 384, 419–20 (Cal. 2008). In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples. See Strauss v. Horton, 207 P.3d 48, 120 (Cal. 2009). In November 2010, when three Iowa state supreme court justices who had been part of a unanimous decision legalizing same-sex marriage were up for reelection, Iowa voters recalled all of them. See A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times (Nov. 3, 2010).
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Beyond these state ballot initiatives, the relatively recent passages of anti-sodomy
laws singling out same-sex conduct, such as the Texas law the Supreme Court ultimately
invalidated in Lawrence, indicate that gays and lesbians lack the consistent “ability to
attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445.
This is not to say that the political process is closed entirely to gay and lesbian
people. But complete foreclosure from meaningful political participation is not the
standard by which the Supreme Court has judged “political powerlessness.” When the
Court ruled in 1973 that gender-based classifications were subject to heightened scrutiny,
Frontiero v. Richardson, 411 U.S. 677 (1973), women already had won major political
victories, including a constitutional amendment granting the right to vote and protection
against employment discrimination under Title VII. As Frontiero makes clear, the
“political power” factor does not require a complete absence of political protection, and its application is not intended to change with every political success.18
iv. Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society.
Even where other factors might point toward heightened scrutiny, the Court has
declined to treat as suspect those classifications that generally bear on “ability to perform
18 In determining that gender classifications warranted heightened scrutiny, the plurality in Frontiero noted that “in part because of past discrimination, women are vastly underrepresented in this Nation’s decisionmaking councils. There has never been a female President, nor a female member of this Court. Not a single woman presently sits in the United States Senate, and only 14 women hold seats in the House of Representatives.” 411 U.S. at 686 n.17 (plurality opinion).
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or contribute to society.” See Cleburne, 473 U.S. at 441 (holding that mental disability is not a suspect classification) (quotation omitted); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312–15 (1976) (holding that age is not a suspect classification).
Sexual orientation is not such a classification. As the history described above makes clear, prior discrimination against gay and lesbian people has been rested not on their ability to contribute to society, but on the basis of invidious and long-discredited views that gays and lesbians are, for example, sexual deviants or mentally ill. See also supra Part I.A.1.i. As the American Psychiatric Association stated more than 35 years ago, “homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities.” Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973); see also Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975) (reflecting a similar American Psychological Association statement).
Just as a person’s gender, race, or religion does not bear an inherent relation to a person’s ability or capacity to contribute to society, a person’s sexual orientation bears no inherent relation to ability to perform or contribute. President Obama elaborated on this principle in the context of the military when he signed the Don’t Ask, Don’t Tell Repeal Act of 2010:
[V]alor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed. . . . There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It’s been lost to
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prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands. White House, Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010 (Dec. 22, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/22/remarks-president-and-vi ce-president-signing-dont-ask-dont-tell-repeal-a. The Supreme Court has also recognized that opposition to homosexuality, though it may reflect deeply held personal religious and moral views, is not a legitimate policy objective. Lawrence, 539 U.S. at 577 (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” (quotation omitted); Romer, 517 U.S. at 635 (noting that a law cannot broadly disfavor gays and lesbians because of “personal or religious objections to homosexuality”). Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the basis of sexual orientation rest on a “factor [that] generally provides no sensible ground for differential treatment,” see Cleburne, 473 U.S. at 440, and thus such laws merit heightened scrutiny. B. DOMA Fails Heightened Scrutiny. For the reasons described above, heightened scrutiny is the appropriate standard by which to review classifications based on sexual orientation, including DOMA Section
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3.19 In reviewing a legislative classification under heightened scrutiny, the government
must establish, at a minimum, that the classification is “substantially related to an
important governmental objective.” Clark, 486 U.S. at 461. Moreover, under any form
of heightened scrutiny, a statute must be defended by reference to the “actual
[governmental] purposes” behind it, not different “rationalizations.” VMI, 518 U.S. at
535–36.
Section 3 fails this analysis.20 The legislative history demonstrates that the statute
was motivated in significant part by animus towards gays and lesbians and their intimate
and family relationships.21 Among the interests expressly identified by Congress in
enacting DOMA was “the government’s interest in defending traditional notions of
morality.” H.R. Rep. No. 104-664, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905
19 The government takes no position on whether sexual orientation classifications should be considered suspect, as opposed to quasi-suspect, and therefore whether DOMA should be subject to intermediate or strict scrutiny. 20 Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard. 21 We note that some members of the majority in Congress that enacted DOMA have changed their views on the law, and the legitimacy of its rationales, since 1996. See, e.g., Bob Barr, No Defending the Defense of Marriage Act, L.A. Times (Jan. 5, 2009), available at http://www.latimes.com/news/politics/newsletter/la-oe-barr5-2009jan05,0,2810156. story?track=newslettertext. In reviewing the statute under heightened scrutiny, however, what is relevant are the views of Congress at the time of enactment, as evidenced by the legislative record.
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(“H.R. Rep.”). The House Report repeatedly claims that DOMA upholds “traditional notions of morality” by condemning homosexuality, and by expressing disapproval of gays and lesbians and their committed relationships. See, e.g., H.R. Rep. at 15–16 (“[J]udgment [opposing same-sex marriage] entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”); id. at 16 (stating that same-sex marriage “legitimates a public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral” (quotation omitted)); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality.”); id. at 33 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable” (quotation omitted)).
The House Report also explicitly stated an interest in extending legal preferences to heterosexual couples in various ways to “promote heterosexuality” and discourage homosexuality. H.R. Rep. at 15 n.53 (“Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. . . . Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality . . . .”). Thus, one of the goals of DOMA was to provide gays and lesbians with an incentive to abandon or at least to hide from view a core aspect of
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their identities, which legislators regarded as immoral and inferior. This record evidences the kind of animus and stereotype-based thinking that the
Equal Protection Clause is designed to guard against. Cf. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (“[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.”); see also Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“[The Supreme Court] ha[s] consistently held . . . that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests.” (quotation and alteration omitted)). And even if Congress’s opposition to gay and lesbian relationships could be understood as reflecting moral or religious objections, that would remain an impermissible basis for sexual-orientation discrimination. See supra Part I.A.1.iv; see also Romer, 517 U.S. at 635 (noting that law cannot broadly disfavor gays and lesbians because of “personal or religious objections to homosexuality”). Discouraging homosexuality, in other words, is not a governmental interest that justifies sexual orientation discrimination.
Nor is there some other important governmental interest identified by Congress and substantially advanced by Section 3 of DOMA, as required under heightened scrutiny. In addition to expressing bare hostility to gay and lesbian people and their relationships, the House Report articulated an interest in “defending and nurturing the institution of traditional, heterosexual marriage.” H.R. Rep. at 12. That interest does not
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support Section 3. As an initial matter, reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. VMI, 518 U.S. at 535 (invalidating longstanding tradition of single-sex education at Virginia Military Institute). But even if it were possible to identify a substantive and animus-free interest in protecting “traditional” marriage on this record, there would remain a gap between means and end that would invalidate Section 3 under heightened scrutiny. Section 3 of DOMA has no effect on recognition of the same-sex marriages Congress viewed as threatening to “traditional” marriage; it does not purport to defend “traditional, heterosexual marriage” by preventing same-sex marriage or by denying legal recognition to such marriages. Instead, Section 3 denies benefits to couples who are already legally married in their own states, on the basis of their sexual orientation and not their marital status. Thus, there is not the “substantial relationship” required under heightened scrutiny between an end of defending “traditional” marriage and the means employed by Section 3.
The same is true of Congress’s interest in promoting “responsible procreation and child-rearing,” which the House Report identified not as a separate rationale for DOMA Section 3, but as the basis for its larger interest in defending “the institution of traditional, heterosexual marriage.” See, e.g., H.R. Rep. at 12–13 (“At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and
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child-rearing.”); id. at 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”) (emphasis added). Again, even assuming that Congress legislated on the basis of an independent and animus-free interest in promoting responsible procreation and child-rearing, that interest is not materially advanced by Section 3 of DOMA and so cannot justify that provision under heightened scrutiny.
First, there is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See, e.g., American Academy of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents (Feb. 2002), available at http://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339; American Psychological Association, Sexual Orientation, Parents, & Children (July 2004), available at http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement (2009), available at http://www.aacap.org/cs/root/
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policy_statements/gay_lesbian_transgender_and_bisexual_parents_policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, available at http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, available at http://www.cwla.org/ programs/culture/glbtqposition.htm. For this reason alone, no penalty or prohibition on same-sex marriage can be “substantially” related to an interest in promoting responsible child-rearing.
Second, there is no evidence in the legislative record that denying federal benefits to same-sex couples legally married under state law operates in any way to encourage responsible child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such evidence would look like. In enacting DOMA, Congress expressed the view that marriage plays an “irreplaceable role” in child-rearing. H.R. Rep. at 14. But Section 3 does nothing to affect the stability of heterosexual marriages or the childrearing practices of heterosexual married couples. Instead, it denies the children of same-sex couples what Congress sees as the benefits of the stable home life produced by legally recognized marriage, and therefore, on Congress’s own account, undermines rather than advances an interest in promoting child welfare.
Finally, as to “responsible procreation,” even assuming an important
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governmental interest in providing benefits only to couples who procreate, Section 3 is
not sufficiently tailored to that interest to survive heightened scrutiny. Many state-
recognized same-sex marriages involve families with children; many opposite-sex
marriages do not. And ability to procreate has never been a requirement of marriage or
of eligibility for federal marriage benefits; opposite-sex couples who cannot procreate
for reasons related to age or other physical characteristics are permitted to marry and to
receive federal marriage benefits. Cf. H.R. Rep. at 14 (noting “that society permits
heterosexual couples to marry regardless of whether they intend or are even able to have
children” but describing this objection to DOMA as “not a serious argument”).22
In sum, the official legislative record makes plain that DOMA Section 3 was
motivated in substantial part by animus toward gay and lesbian individuals and their
intimate relationships, and Congress identified no other interest that is materially
advanced by Section 3. Section 3 of DOMA is therefore unconstitutional. The
22 The House Report also identifies preservation of scarce government resources as an interest underlying Section 3’s denial of government benefits to same-sex couples married under state law. See H.R. Rep. at 18. In fact, many of the rights and obligations affected by Section 3, such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal funds, and in other cases, exclusion of state-recognized same-sex marriages costs the government money by preserving eligibility for certain federal benefits. But regardless of whether an interest in preserving resources could justify Section 3 under rational basis review, it is clear that it will not suffice under heightened scrutiny; the government may not single out a suspect class for exclusion from a benefits program solely in the interest of saving money. See, e.g., Graham v. Richardson, 403 U.S. 365, 374–75 (1971) (holding that state may not advance its “valid interest in preserving the fiscal integrity of its programs” through alienage-based exclusions).
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judgment of the district court in Gill should therefore be affirmed. II. DOMA Violates the Spending Clause by Imposing an Unconstitutional
Condition on the Receipt of Federal Funds. The Constitution authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, § 8, cl. 1. It is well-settled that “Congress may attach conditions on the receipt of federal funds,” South Dakota v. Dole, 483 U.S. 203, 206 (1987), and “may fix the terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The spending power is “‘not limited by the direct grants of legislative power found in the Constitution,’” but can be used to achieve broad policy objectives beyond Article I’s “‘enumerated legislative fields.’” Dole, 483 U.S. at 207 (citations omitted); see also Printz v. United States, 521 U.S. 898, 936 (1997) (O’Connor, J., concurring) (contrasting an impermissible command with the imposition of a condition on acceptance of federal funds). Accordingly, “Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions.” College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999). Although statutes that impose conditions on the receipt of federal funds or on the collection of federal taxes generally raise no constitutional concerns under the Spending
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Clause, the Court in Dole identified four limitations on Congress’s spending power. First, the Spending Clause by its terms requires that Congress legislate in pursuit of “‘the general welfare.’” Dole, 483 U.S. at 207 (quoting Art. I, § 8, cl. 1). Second, if Congress places conditions on the states’ receipt of federal funds, it “‘must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’” Id. (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, the Supreme Court’s cases “have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” Dole, 483 U.S. at 207 (internal citation omitted). And fourth, the obligations imposed by Congress may not violate any independent constitutional provision. Id. at 208. As the Court in Dole explained, this limitation reflects “the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” Id. at 210.
DOMA prescribes the terms and conditions of federally funded programs and federal tax schemes, so it is within the Spending Clause’s general grant of authority to Congress. The district court’s holding in Massachusetts that DOMA exceeds Congress’s authority under the Spending Clause turned entirely on the fourth Dole limitation.23
23 Massachusetts also claimed that DOMA is not germane to the purposes of the Medicaid and State Cemetery grant programs. JA 34–35 (Mass. Compl. ¶¶ 87–98). The district court did not decide this issue, and Massachusetts’s claim is, in any event, wholly without merit. The purposes and terms of each of these programs are defined by
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Because the court had already concluded in Gill that DOMA violates equal protection, it similarly held that Congress could not force Massachusetts to violate equal protection, applicable to Massachusetts through the Fourteenth Amendment, as a condition of the receipt of federal funds. JA 659–60 (Mass. Op. 26–27).
As demonstrated above, DOMA Section 3 violates equal protection. Therefore, it violates the Spending Clause by imposing an unconstitutional condition on Massachusetts, and the judgment of the district court in Massachsusetts should be affirmed on this ground. III. DOMA Does Not Violate the Tenth Amendment by Interfering with State
Sovereignty. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Under Supreme Court precedent, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505
Congress, not by Massachusetts, and Congress is free to modify a program as it sees fit. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.”). In the event this Court determines that DOMA Section 3 does not violate equal protection, it should also hold that Section 3 represents a valid exercise of Congressional authority under the Spending Clause.
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U.S. 144, 156 (1992). “It is in this sense that the Tenth Amendment ‘states but a truism that all is retained which has not been surrendered.’” Id. (quoting United States v. Darby, 312 U.S. 100, 124 (1941)). This Court has similarly held that the Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power.” United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997); see also United States v. Lewko, 269 F.3d 64, 66–70 (1st Cir. 2001); United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999). Because, as shown above, DOMA Section 3 is inconsistent with the Equal Protection Clause and, as a result, is also not authorized by the Spending Clause, this Court need not reach the Tenth Amendment argument.
However, in the event this Court determines that DOMA Section 3 does not violate equal protection and therefore represents a valid exercise of Congressional authority under the Spending Clause, it should also hold that DOMA does not violate the Tenth Amendment. Massachusetts has not raised a commandeering claim,24 see New York, 505 U.S. at 161; Printz v. United States, 521 U.S. 898, 907–08 (1997), and if DOMA is supported by the Spending Clause, it plainly does not violate the Tenth Amendment.
Despite clear precedent holding to the contrary, Massachusetts claims that, even if DOMA is authorized by the Spending Clause, Section 3 of DOMA violates the Tenth
24 Massachusetts’s complaint alleged that DOMA unconstitutionally commandeered state regulatory authority under New York v. United States, 505 U.S. 144 (1992), JA 33 (Mass. Compl. ¶ 86), but the state abandoned that claim in its motion for summary judgment before the district court, Mass. Mem. in Supp. of Mot. for Summary Judgment at 22.
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Amendment because it “creat[es] an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.” JA 33 (Mass. Compl. ¶ 85). The district court agreed with Massachusetts, applying the three part Tenth Amendment test from National League of Cities v. Usery, 426 U.S. 833 (1976), which was explicitly overruled in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 531 (1985).
The district court did not cite National League of Cities in applying that test; instead, it cited this Court’s decision in United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997), which post-dated Garcia and cited, in dicta, Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 287–88 (1981), for this three part test. The part of Hodel to which Bongiorno referred, however, relied entirely on National League of Cities and therefore was plainly overruled by Garcia as well. This dicta in Bongiorno, even if it has not been overturned by this Court, is inconsistent with Supreme Court precedent. Regardless, as noted above, when there is no commandeering issue, Bongiorno itself holds that the Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power.” Bongiorno, 106 F.3d at 1033. Accordingly, the district court’s Tenth Amendment holding plainly conflicts with Supreme Court case law.
Nonetheless, even if the existence of congressional authority under the Spending Clause would not defeat Massachusetts’s claim—which, of course, it would if this Court
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determines that DOMA does not violate equal protection—the premises of the claim are flawed. It may be true that domestic relations have traditionally been regulated by the states—states traditionally decide who may marry, the dissolution of marriage, division of marital property, child custody, and the payment and amount of alimony or child support. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (describing limited statutory domestic relations exception to federal court jurisdiction). However, Section 3 of DOMA in no way displaces any state laws in these areas, and leaves entirely unaffected Massachusetts’s interest in defining family relations under its own law within its own borders. Massachusetts can still issue marriage licenses on whatever terms it decides are appropriate and can grant same-sex couples all of the same benefits under state law it grants to opposite-sex couples.
Therefore, the essence of Massachusetts’s claim is a contention that DOMA violates the Tenth Amendment by interfering with an asserted sovereign power of a state to define the meaning of the words “marriage” and “spouse” under federal law. Massachusetts thus asserts for the states the sovereign authority to define provisions of federal law. While the Constitution reserves various powers to the states, defining the meaning and scope of federal statutes is certainly not among them. As discussed above with respect to the Spending Clause, a federal statute’s meaning and terms are defined by Congress. See, e.g., Atlantic Fish Spotters Ass’n v. Evans, 321 F.3d 220, 223–24 (1st Cir. 2003); United States v. Ahlers, 305 F.3d 54, 57–58 (1st Cir. 2002).
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Furthermore, it does not matter whether Congress has legislated on an issue previously. Congressional inaction does not remove an area from Congress’s authority. Moreover, it is not true, as the district court held, that DOMA represents the first time that Congress has departed from state definitions of family law for purposes of federal law. JA 662–65 (Mass. Op. 29–32). Independent of DOMA, there are a multitude of different federal programs that do not accept wholesale a state definition of marriage or its attributes. Many of them, like DOMA, do not adhere to definitions of family law terms as set forth under state law. Immigration law, where the federal government will look behind the existence of a state marriage for evidence of fraud, is one example. 8 U.S.C. § 1186a(b)(1)(A)(i); 8 C.F.R. § 216.3. Similarly, under ERISA, Congress has provided that the terms of an ERISA plan supersede state community property law—a matter typically regarded as being of fundamental importance in the regulation of marriage by those states that have such regimes. See Egelhoff v. Egelhoff, 532 U.S. 141, 151–52 (2001) (discussing Boggs v. Boggs, 520 U.S. 833 (1997)); see also Hisquierdo v. Hisquierdo, 439 U.S. 572, 581–83 (1979) (holding that federal provisions for payment of benefits under Railroad Retirement Act preempt state community property law; discussing other cases in which state family law was found to be preempted). Other examples include the Food Stamps program, 7 U.S.C. § 2012(n)(1)(B) (defining the term “household” as, inter alia, “a group of individuals who live together and customarily purchase food and prepare meals together for home consumption”); the tax code, 26
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U.S.C. § 7703(b) (departing from state definition of “married” to exclude “certain married individuals living apart”); the Social Security Act, 42 U.S.C. § 416(a)–(g) (defining the terms “spouse,” “wife,” “widow,” “divorce,” “child,” “husband,” and “widower” for the purposes of federal law in ways that depart from underlying state definitions); veterans’ benefits, 38 U.S.C. § 101(3) (defining “surviving spouse” as “a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death . . . and who has not remarried”); and many laws relating to the benefits offered to federal employees, see, e.g., 5 U.S.C. § 8101(6)–(11) (defining the terms “widow,” “parent,” “brother,” “sister,” “child,” “grandchild,” and “widower”); 5 U.S.C. § 8341(a)(1)(A)–(a)(2)(A) (defining “widow” as “the surviving wife of an employee or Member” who “was married to him for at least 9 months immediately before his death” or “the mother of issue by that marriage,” and providing a similar definition for “widower”).
This list, which is hardly exhaustive, demonstrates that, for the purposes of the Tenth Amendment question, the district court was incorrect in finding that the federal government has previously simply incorporated state law definitions of marriage for purposes of eligibility under federal programs. Indeed, this Court has repeatedly upheld federal statutes that affect domestic relations law in various ways. See, e.g., Lewko, 269 F.3d at 66–70 (upholding the Child Support Recovery Act of 1992, 18 U.S.C. § 228(a)(1),
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and the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228(a)(3)); Meade, 175 F.3d at 224 (upholding 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by individuals who have been subject to a judicial anti-harassment or anti-stalking order).
Therefore, we respectfully submit that DOMA does not impermissibly interfere with state sovereignty. In the event this Court determines that Section 3 does not violate equal protection and therefore is authorized by the Spending Clause, it should hold that DOMA does not violate the Tenth Amendment.
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CONCLUSION

For the foregoing reasons, this Court’s precedents applying rational basis review

to sexual orientation classifications should be reconsidered, and the judgments of the

district court should be affirmed on the ground that Section 3 of DOMA is subject to

heightened scrutiny and, under that standard, is unconstitutional as applied to same-sex

couples married under state law.

Respectfully submitted,

TONY WEST Assistant Attorney General

CARMEN M. ORTIZ United States Attorney

ROBERT E. KOPP

/s/ Michael Jay Singer MICHAEL JAY SINGER
(202) 514-5432

/s/ August E. Flentje AUGUST E. FLENTJE
(202) 514-3309

/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253

SEPTEMBER 2011

Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I hereby
certify that this brief complies with the type-volume limitation in Rule 32(a)(7)(B). The
foregoing brief is presented in proportionally spaced font typeface using Corel
WordPerfect X4 in 14-point Garamond font. The brief, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), contains 15,714 words, as counted by Corel
WordPerfect X4, which is within the word limit of 21,000 words set by this Court’s
Order of November 24, 2010, for the principal brief of Appellants/Cross-Appellees.
/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY
(202) 353-8253 Attorney, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2011, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the First Circuit
by using the appellate CM/ECF system. I further certify that all participants in the case
are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY
(202) 353-8253 Attorney, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

ADDENDUM

TABLE OF CONTENTS

Page

Commonwealth of Massachusetts v. United States Department of Health and Human Services, et al.. . . . . . . . . . . . . . . . . . . . Add. 1

Order of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 2

Memorandum of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 3

Judgment of August 12, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 39

Gill, et al. v. Office of Personnel Management, et al... . . . . . . . . . . . . . . . . Add. 41

Order of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 42

Memorandum of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 43

Amended Judgment of August 17, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 82

Statutory Addendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 88

Commonwealth of Massachusetts v.
United States Department of Health and Human Services, et al.
Add. 1

Case 1:09-cv-11156-JLT Document 57 Filed 07/08/10 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the Secretary *

of the United States Department of Health and *

Human Services; UNITED STATES

*

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as the *

Secretary of the United States Department of

*

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 1:09-11156-JLT

ORDER July 8, 2010 TAURO, J. For the reasons set forth in the accompanying Memorandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ Joseph L. Tauro United States District Judge

Add. 2

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 1 of 36

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the Secretary *

of the United States Department of Health and *

Human Services; UNITED STATES

*

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as the *

Secretary of the United States Department of

*

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 1:09-11156-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth

11 U.S.C. § 7.
2Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
Add. 3

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 2 of 36
Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED.3 II. Background4
A. The Defense of Marriage Act Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”6
3In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.
4Defendants, with limited exception, concede the accuracy of Plaintiff’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
61 U.S.C. § 7. 2
Add. 4

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 3 of 36
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Accounting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10 In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and protections of the federal Constitution) for the
7Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO-04-353R).
8Id. at 1. 9Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10Id. 11Id., ¶ 10.
3
Add. 5

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 4 of 36
health, safety and welfare of their populations.”12 In large part, rules and regulations regarding marriage corresponded with local
circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.”16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of

12Id. 13Id. 14Id. 15Id., ¶ 14. 16Id. 17Id., ¶¶ 15, 18-19. 18Id., ¶ 19.

4
Add. 6

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 5 of 36
constitutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.”20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.”21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status determinations
19Id. 20Id. 21Id. 22Id. 23See id., ¶¶ 20-52. 24Id.
5
Add. 7

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 6 of 36
for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.”29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.”31
25Id., ¶ 45. 26Defs.’ Mem. Mot. Dismiss, 27. 27See Cott Aff., ¶¶ 36, 44. 28Id., ¶ 35. 29Id. 30Id., ¶ 37. 31Id.
6
Add. 8

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 7 of 36
In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from African-American voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39 Throughout this entire period, however, the federal
32Id., ¶ 36. 33Id. 34Id., ¶ 38. 35Id. 36Id. 37Id., ¶ 38. 38Id., ¶ 43. 39In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these
7
Add. 9

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 8 of 36
government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.”43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44 As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recognition of these marriages, the Commonwealth contends that the statute has a significant negative impact on the
statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40Cott Aff., ¶ 45. 41Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43Compl. ¶ 17. 44Id., ¶¶ 18-19. 45Nyberg Aff., ¶¶ 6-7.
8
Add. 10

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 9 of 36
operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47Id. 48Id., ¶ 4. 49Id., ¶ 4. 50Walls Aff., ¶ 8 (citations omitted). 51Id.
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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.”55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
The VA regulations require that veterans’ cemeteries “be operated solely for the interment
52Id., ¶ 5. 53Id., ¶ 5. 54Id., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department...”)). 55Id., ¶ 6. 5638 U.S.C. § 2408(c). 57Walls Aff., ¶ 10.
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of veterans, their spouses, surviving spouses, [and certain of their] children....”58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.”60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.”61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.”62
5838 C.F.R. § 39.5(a). 59Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services (June 18, 2004). 60Id. 61Walls Aff., Ex. 2, NCA Directive 3210/1 (June 4, 2008). 62Walls Aff., ¶ 20.
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On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (1-3), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which recognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government,
63Walls Aff., Ex. 3, Copy of Approved Application. 64Walls Aff., ¶ 22, Ex. 4, Marriage License. 65Walls Aff., ¶ 23. 66Id. 67Id., ¶ 24. 68Id., ¶ 25. 69Id., ¶ 26.
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Thomas Hopkins is ineligible for burial in Winchendon.70 Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the
Winchendon cemetery and intends to bury the couple together.71 2. MassHealth
Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74
MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately one-half of its Medicaid expenditures76 and administration costs.77 HHS provides MassHealth with billions of
70Id., ¶ 26. 71Id., ¶¶ 21, 27. 72Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73Id. 74Id., ¶¶ 2, 5. 75Id., ¶ 5. 76Id., ¶ 7. 77Id., ¶ 7.
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dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for Medicaid when assessed as single, even though they would qualify if assessed as married.85
78Id., ¶ 6. 79Id., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report (June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80Id., ¶ 8. 81Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82Id., ¶ 9. 83Id., ¶ 11. 84Id., ¶ 14. 85Id.
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The Commonwealth contends that, under certain circumstances, the recognition of samesex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible. 89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the $43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse

86Id., ¶ 11. 87Id., ¶ 11. 88Id., ¶ 11. 89Id., ¶ 12. 90Id., ¶ 12. 91Id., ¶ 12.

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earning $7,000 per year is eligible for Medicaid coverage.92 After the Commonwealth began recognizing same-sex marriages in 2004, MassHealth
sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.”95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.”96 In addition, CMS stated that “because same sex couples are not spouses
92Id., ¶ 12. 93Id., ¶ 15. 94Id., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61. 96Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21,
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under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.”97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.”98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
3. Medicare Tax Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s
2008). 97Id. 98Id. 99Callahan Aff., ¶ 22. 100Id., ¶ 23. 101Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26
C.F.R. § 1.106-1). 17
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same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing same-sex marriages, and December 2009.107
Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of
102McHugh Aff., ¶ 4. 103Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104Id. 105Id. 106Id., ¶ 7. 107Id., ¶ 8.
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imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion A. Summary Judgment Summary judgment is appropriate where there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
B. Standing This court first addresses the government’s contention that the Commonwealth lacks
108Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109Id., ¶ 10. 110Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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standing to bring certain claims against the VA and HHS.113 “The irreducible constitutional minimum of standing” hinges on a claimant’s ability to
establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.”115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not
113The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115Defs.’ Mem. Mot. Dismiss, 32.
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required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely...speculative.”117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish
116See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007). 117Def.’s Mem. Mot. Dismiss, 34.
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marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”120 The division between state and federal powers delineated by the Constitution is not merely “formalistic.”121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.”122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is
118New York v. United States, 505 U.S. 144, 156 (1992). 119United States v. Morrison, 529 U.S. 598, 607 (2000). 120U.S. CONST. Amend. X. 121New York v. United States, 505 U.S. 144, 187 (1992). 122Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123Id.
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authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.”124
Since, in essence, “the two inquiries are mirror images of each other,”125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or more of its powers enumerated in the Constitution.”126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.”127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
124New York, 505 U.S. at 155. 125Id. at 156. 126United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)). 127United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)). 128Morrison, 529 U.S. at 607.
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The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdictional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal
129See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause).
130529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”).
131United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce”).
132U.S. CONST. art. I, § 8. 24
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statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133
It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole
133Pl.’s Reply Mem., 3. 134Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). 135South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136483 U.S. 203 (1987). 137Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).
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requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to...legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’”139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.”140
138Dole, 483 U.S. at 210. 139Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140Id. (internal citation omitted).
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In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the same-sex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal
141Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).
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funding, this court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”142
A. DOMA Regulates the Commonwealth “as a State” With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam and Winchendon should the same-sex spouse of a veteran
142106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass'n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).
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be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.”144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and paternity,”145 is often held out as the archetypal area of local concern.146
143The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568). 145Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 146See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the
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The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action...can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.”148
State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard
Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 30
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their states’ areas of sovereign concern. The history of the regulation of marital status determinations therefore suggests that this
area of concern is an attribute of state sovereignty, which is “truly local” in character. That same-sex marriage is a contentious social issue, as the government argues, does not
alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect
149See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
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of marriage, divorce, and childrearing on the national economy is undoubtedly significant.”150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.”153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of
150529 U.S. at 615 (emphasis added). 151542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted). 152Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process. 153Defs.’ Reply Mem., 5.
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statehood.

C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions

Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its

154United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’” were “abandon[ed] ... as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
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separate and independent existence.”155 And, in view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.”156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury same-sex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an application for the burial of Thomas Hopkins, the same-sex partner of Darrel
155United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 64552 (2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.
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Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,”157 because “the Constitution ... divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of
157New York, 505 U.S. at 159. 35
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the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge

158Id. at 187.

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Case 1:09-cv-11156-JLT Document 63 Filed 08/12/10 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the

*

Secretary of the United States Department of

*

Health and Human Services; UNITED STATES *

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as *

the Secretary of the United States Department of *

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 09-11156-JLT

JUDGMENT

August 12, 2010

TAURO, J.

Having allowed Plaintiff’s Motion for Summary Judgment [#26], this court hereby enters

the following judgment in this action:

1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law

recognizes marriages between same-sex couples.

2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et

seq. is unconstitutional as applied in Massachusetts, where state law recognizes

marriages between same-sex couples.

3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is

unconstitutional as applied in Massachusetts, where state law recognizes marriages

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Case 1:09-cv-11156-JLT Document 63 Filed 08/12/10 Page 2 of 2 between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ Joseph L. Tauro United States District Judge
2
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Hara and Gill, et al., v.
Office of Personnel Management, et al.
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Case 1:09-cv-10309-JLT Document 69 Filed 07/08/10 Page 1 of 1

lil\ITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

• NA~CY GILL & MARCELLE LETOURNEAU,

et ai.,

•

•

Plaintiffs,

•

•

v,

• *

OFFICE OF PERSONNEL MANAGEME~T,

•

et aI.,

•

•

Defendants.

•

•

Civil Action ~o, 09-10309-JLT

ORDER July 8, 2010 TACRO, 1. For the reasons set forth in the accompanying Memorandum, this court hereby orders that: 1. Defendants' Motion to Dismiss [#20J is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant's Motion to Dismiss [#20J is DENIED as to all claims, except Plaintiff Dean Hara's claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs' Motion for SummaW Judgment [#25J is ALLOWED. IT IS SO ORDERED.

d States District Judge

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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 1 of 39

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NANCY GILL & MARCELLE LETOURNEAU, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

*

OFFICE OF PERSONNEL MANAGEMENT, *

et al.,

*

*

Defendants.

*

*

Civil Action No. 09-10309-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically, Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual

11 U.S.C. § 7.
2Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
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couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, it provides that: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.6 In large part, the enactment of DOMA can be understood as a direct legislative response
3Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996) 61 U.S.C. § 7.
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to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.”10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.”11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “preserve[] each State’s ability to decide” what should constitute a marriage under its own laws and to “lay[] down clear rules” regarding what constitutes a marriage for purposes of federal law.12
7852 P.2d 44 (Haw. 1993). 8See id. at 59-67. 9Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside. 10Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”]. 11Id. at 10. 12Id. at 2.
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In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, Congress relied on its “express grant of authority,” under the second sentence of the Constitution’s Full Faith and Credit Clause, “to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.”14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.”16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’”17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.”18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’
13Section 2 of DOMA provides that “[n]o State...shall be required to give effect to any public act, record, or judicial proceeding of any other State...respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.”
14Id. at 25. 15Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16Id. at 3. 17Id. at 12. 18Id. 19Id. at 13, 18.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 5 of 39
“moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”20 In one unambiguous expression of these
objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated
that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.”21
In the floor debate, members of Congress repeatedly voiced their disapproval of
homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion” and “an attack upon God’s principles.”22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.”24
Although DOMA drastically amended the eligibility criteria for a vast number of different
federal benefits, rights, and privileges that depend upon marital status, the relevant committees did
20Id. at 16 (footnote omitted). 21142 CONG. REC. H7480 (daily ed. July 12, 1996). 22142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith). 23Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle–these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle... Homosexuals and lesbians boast that they are close to realizing their goal–legitimizing their behavior.... At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”). 24Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 6 of 39
not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined, prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
25House Report at 10-11. 26Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16). 27U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 7 of 39
1. Health Benefits Based on Federal Employment Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program. Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses. Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers must meet in order to offer coverage under
28“Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B). 295 U.S.C. § 8905.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 8 of 39
the program.30 The Office of Personnel Management (“OPM”) administers the FEHB and is empowered
to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,”32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.”33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age....”37 An employee enrolled in the FEHB for “self only” coverage may change to “self and family” coverage by submitting documentation to the
30Id. §§ 8901-8914. 31Id. §§ 8902, 8903, 8906. 32Id. § 8913. 33Id. 34Id. § 8906. 35Id. §§ 8905, 8906. 365 C.F.R. § 890.302(a)(1). 37Id. § 8901(5).
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employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.”38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee...or of a retired employee....”39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.”40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and
38See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39See 5 U.S.C. § 8901(3)(B). 405 C.F.R. § 890.303(c). 415 U.S.C. §§ 8951, 8952, 8981, 8982. 42Id. §§ 8951, 8954, 8981, 8984.
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sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.”47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.”48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
C. Flexible Spending Arrangement Program50 A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in
43Id. §§ 8952(a), 8953, 8982(a), 8983. 44Id. §§ 8962(a), 8992(a). 45Id. §§ 8958(a), 8988(a). 46Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47Id. § 894.201(c). 48Id. 894.509(a), (b). 49See 5 U.S.C. §§ 8951(2), 8991(2). 50Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program”. Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
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an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent] provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.”55 A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert
5126 U.S.C. § 125. 52See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 5442 U.S.C. §§ 901, 902. 55Id. § 405(a); see id. § 902(a)(5).
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Burtis seeks Widower’s Insurance Benefits. A. Retirement Benefits
The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].”57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving
56Id. §§ 402, 413(a), 414, 415. 57Id. § 402(b), (c). 58The Social Security Act also provides for a Widow's Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower's Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male. 59Id. §§ 402(I), 413(a), 414(a), (b).
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the individual’s lifetime earnings.60 ii. Widower’s Insurance Benefit
The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or self-employment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
3. Filing Status Under the Internal Revenue Code Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.”63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return
60Id. §§ 402(I), 415(a). 61Id. §§ 402(f), 413(a), 414(a), (b). 62Id. § 402(f)(1); see id. § 402(f)(3). 6326 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
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within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68 B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
64Id. § 6013(b)(1), (2). 65Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 67Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complainedof conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”69 Where the plaintiff lacks standing to pursue his claim, the court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of
69Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
70FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 715 U.S.C. § 8905(b). 725 U.S.C. § 8347(b). 73See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985).
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the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of
74The appeal, however, has been stayed pending the outcome of this action. 16
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DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annuity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a
75See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
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ceiling, to coverage eligibility. Plaintiffs assert, therefore, that OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.”77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.”78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.”79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.”80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot
765 C.F.R. § 890.302(a)(1) (emphasis added). 77One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 785 U.S.C. § 8901(5) (emphasis added). 79United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 801 U.S.C. § 7.
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plausibly interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’”83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’”84 And it is because of this “commitment to the law’s neutrality where the rights of persons are at stake”85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional
81Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).
85Romer, 517 U.S. at 623. 19
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scrutiny.86 To say that all citizens are entitled to equal protection of the laws is “essentially a direction
[to the government] that all persons similarly situated should be treated alike.”87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest.90
Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
86Id. 87City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89Id. 90Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.
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• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship”91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity...[and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
91Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted). 92Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted). 93Id. (internal citations omitted). 94Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted).
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Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.”95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.”96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].”97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”98
Importantly, the objective served by the law must be not only a proper arena for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.”100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”101 As such, a law
95Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96Romer, 517 U.S. at 633. 97Id. 98Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). 99Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441). 100Heller v. Doe, 509 U.S. 312, 321 (1993). 101City of Cleburne, 473 U.S. at 447.
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must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.”102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”104 This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare
102Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103House Report at 12-18. 104City of Cleburne, 473 U.S. at 446. 105See Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10.
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communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the time of DOMA’s
passage that children had the best chance at success if raised jointly by their biological mothers
and fathers, a desire to encourage heterosexual couples to procreate and rear their own children
more responsibly would not provide a rational basis for denying federal recognition to same-sex
marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it
“prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,”107 when afforded equal recognition under federal
law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a
rational basis upon which to exclude same-sex marriages from federal recognition because, as
Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile
106Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy.aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America,Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/culture/glbtqposition.htm).
107Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting).
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and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.”112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at
109Id. 110Romer, 517 U.S. at 632-33. 111Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112Id.
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the very least mean”113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.”114
Neither does the Constitution allow Congress to sustain DOMA by reference to the
objective of defending traditional notions of morality. As the Supreme Court made abundantly
clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State
has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....”115
And finally, Congress attempted to justify DOMA by asserting its interest in the
preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”117 This
court can discern no principled reason to cut government expenditures at the particular expense of
113United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone). 115Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)). 116This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of same-sex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages. 117Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).
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Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation. In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits. In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118City of Cleburne, 473 U.S. at 448. 27
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For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be
119See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
120See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 121See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
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determined by state, rather than federal law. This is especially true where a statute deals with a
familiar relationship [because] there is no federal law of domestic relations.”122
This conclusion is further bolstered by an examination of the federal government’s
historical treatment of state marital status determinations.123 Marital eligibility for heterosexual
couples has varied from state to state throughout the course of history. Indeed, pursuant to the
sovereign power over family law granted to the states by virtue of the federalist system, as well as
the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to
which States lay claim by right of history and expertise,”124 individual states have changed their
marital eligibility requirements in myriad ways over time.125 And yet the federal government has
fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid
for federal purposes any heterosexual marriage which has been declared valid pursuant to state
law.126
122DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted). 123This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.). 124United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring). 125See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982). 126See, e.g., Dunn v.Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3)
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By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other
(Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1(j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any state-sanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967). 128Def.’s Reply Mem., 14. 129See NANCY COTT, PUBLIC VOWS 163 (2000).
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similarly politically-charged, protracted, and fluid debates at the state level as to who should be
permitted to marry.130
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding
history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a
congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the
new statute and pre-existing federal interests.”131 And the absence of precedent for the legislative
classification at issue here is equally instructive, for “‘discriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to the
[C]onstitution[]....’”132
The government is certainly correct in its assertion that the scope of a federal program is
generally determined with reference to federal law. But the historically entrenched practice of
incorporating state law determinations of marital status where they are relevant to federal law
130Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 614-15 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view that, in the United States, for the most part, family law is state law.... Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 132Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
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reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo might help to achieve. Staying the course is not an end in and of
133See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010).
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itself, but rather a means to an end. Even assuming for the sake of argument that DOMA
succeeded in preserving the federal status quo, which this court has concluded that it did not, such
assumption does nothing more than describe what DOMA does. It does not provide a
justification for doing it. This court does not doubt that Congress occasionally encounters social
problems best dealt with by preserving the status quo or adjusting national policy incrementally.134
But to assume that such a congressional response is appropriate requires a predicate assumption
that there indeed exists a “problem” with which Congress must grapple.135
The only “problem” that the government suggests DOMA might address is that of state-
to-state inconsistencies in the distribution of federal marriage-based benefits. But the
classification that DOMA effects does not bear any rational relationship to this asserted interest in
134The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
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consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects
136RSA 457:4-5. 137City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
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from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex marriage”139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws–that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the
138See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications...made no sense in light of how the [government] treated other groups similarly situated”).
139Def.’s Mem. Opp. Summ. Judg., 16. 35
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suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA
140See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
1428 U.S.C. § 1430. 1438 U.S.C.§ 1186b(2)(A). 144See 5 U.S.C. § 6382.
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dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
It strains credulity to suggest that Congress might have created such a sweeping statusbased enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].”146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,”147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context
145See Heller, 509 U.S. at 319-20 (internal citations omitted). 146Id. at 321. 147Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).
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from which [this court] could discern a relationship to legitimate [government] interests.”148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff
148Romer, 517 U.S. at 635. 149Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 39 of 39 Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

NANCY GILL & MARCELLE LETOURNEAU, )

et al.

)

Plaintiffs,

)

)

v.

)

)

)

OFFICE OF PERSONNEL MANAGEMENT, et al.
Defendants.

) ) )

No. 1:09-cv-l 0309 JLT

~ AMENDED JUDGMENT

This action came on for a hearing before the Court on the Defendants' Motion to Dismiss

[#20] and Plaintiffs' Motion for Summary Judgment [#25], and the issues having been duly

heard and a Memorandum having been issued on July 8, 2010,

It is ORDERED AND ADJUDGED:

The Plaintiffs' Motion for Summary Judgment is ALLOWED and:

(1) The rights of the Plaintiffs are declared as follows:

(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 ("DOMA"), is

unconstitutional as applied to the Plaintiffs by the Defendants in the administration and

application of (1) the Federal Employees Health Benefits Program ("FEHB"), (2) the

Federal Employees Dental and Vision Insurance Program ("FEDVIP"), (3) the United

States Postal Service Health Care Flexible Spending Account program ("Postal Service

Health Care FSA"), (4) certain retirement and survivor benefit provisions of the Social

Security Act, as set forth below, and (5) the Internal Revenue Code.

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(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse, Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 ofDOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 ofDOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
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(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management ("OPM") is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 ofDOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from "self only" to "self and family" so as to provide coverage for his spouse, Plaintiff James Fitzgerald;
(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit PlaintiffNancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael 1. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
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(b) to review the Plaintiff Jo Ann Whitehead's application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, withoUtt regard to Section 3 ofDOMA;
(c) to review the Plaintiff Randell Lewis-Kendell's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of OOMA; and
(d) to review the Plaintiff Herb Burtis's application for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, thl! following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054. (b) For the taxable year ending December 31, 2005: $2,703. (c) For the taxable year ending December 31, 2006: $4,390. (d) For the taxable year ending December 31, 2007: $6,371. (e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII ofthe Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
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Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 5 of 6
(a) For the taxable year ending December 31, 2004: $4,687. (b) For the taxable year ending December 31,2005: $3,785. (c) For the taxable year ending December 31, 2006: $5,546. (d) For the taxable year ending December 31,2007: $5,697. (e) For the taxable year ending December 31,2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America: (a) For the taxable year ending December 31,2006: $1,286. (b) For the taxable year ending December 31, 2007: $1,234. (c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate prov ided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Dc~fendants' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely on the Plaintiff Dean Hara's claim for enrollment in the FEHB Program as a matter of standing.
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Add. 86

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 6 of 6

JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties' concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12,2010 [#71].

ENTERED:

L. Tauro
States District Judge

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Add. 87

STATUTORY ADDENDUM
Pub. L. No. 104-199, 110 Stat 2419 (1996):
SECTION 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES. << 28 USCA § 1738C >>
(a) IN GENERAL.--Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".
* * * *
SEC. 3. DEFINITION OF MARRIAGE. << 1 USCA § 7 >>
(a) IN GENERAL.--Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
* * * *
Add. 88

 </s> United States Court of Appeals
For the First Circuit
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Defendants, Appellants. ________________________
Nos. 10-2207 & 10-2214 DEAN HARA,
Plaintiff, Appellee/Cross-Appellant, NANCY GILL, ET AL.,
Plaintiffs, Appellees, KEITH TONEY, ET AL., Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants/Cross-Appellees,
HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges.

Paul D. Clement with whom H. Christopher Bartolomucci, Conor

B. Dugan, Nicholas J. Nelson , Bancroft PLLC , Kerry W. Kircher ,

General Counsel, Office of General Counsel, U.S. House of

Representatives, Christine Davenport, Sr. , Assistant Counsel,

Katherine E. McCarron , Assistant Counsel, William Pittard ,

Assistant Counsel, and Kirsten W. Konar, Assistant Counsel, were on

brief for intervenor-appellant, the Bipartisan Legal Advisory Group

of the U.S. House of Representatives.

Stuart F. Delery , Acting Assistant Attorney General, Civil

Division, Department of Justice, with whom Tony West , Assistant

Attorney General, Carmen M. Ortiz, United States Attorney, Robert

E. Kopp, Michael Jay Singer , August E. Flentje and Benjamin S.

Kingsley, Appellate Staff, Civil Division, Department of Justice,

were on brief for the federal defendants.

Anthony R. Picarello, Jr. , Jeffrey Hunter Moon , Michael F.

Moses, U.S. Conference of Catholic Bishops, Von G. Keetch

,

Alexander Dushku, R. Shawn Gunnarson, Kirton & McConkie and Carl H.

Esbeck, Legal Counsel, Office of Governmental Affairs, National

Association of Evangelicals, on brief for U.S. Conference of

Catholic Bishops; National Association of Evangelicals; The Church

of Jesus Christ of Latter-day Saints; The Ethics and Religious

Liberty Commission of the Southern Baptist Convention; The Lutheran

Church-Missouri Synod; The Union of Orthodox Jewish Congregations

of America; The Massachusetts Catholic Conference; The Brethren in

Christ Church; The Christian and Missionary Alliance; The

Conservative Congregational Christian Conference; The Evangelical

Free Church of America; The Evangelical Presbyterian Church; The

International Church of the Foursquare Gospel; The International

Pentecostal Holiness Church; The Missionary Church; Open Bible

Churches [USA]; The United Brethren in Christ Church; The Wesleyan

Church, Amici Curiae.

John Anthony Simmons, Sr. and David Ramos on brief for

American College of Pediatricians, Amicus Curiae.

Lawrence J. Joseph on brief for Eagle Forum Education & Legal

Defense Fund, Amicus Curiae.

Paul Benjamin Linton, Special Counsel, Thomas More Society,

Thomas Brejcha, President & Chief Counsel, Thomas More Society, and

Christopher M. Gacek , Family Research C ouncil, on brief for the

Family Research Council, Amicus Curiae.

Kristen K. Waggoner and Ellis, Li & McKinstry PLLC on brief

for Robert P. George, Sherif Girfis, and Ryan T. Anderson, Amici

Curiae.

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David Austin R. Nimocks, Brian W. Raum, Dale Schowengerdt and Holly L. Carmichael , Alliance Defense Fund, on brief for Representative Lamar Smith, Amicus Curiae.
Mary E. McAlister, Stephen M. Crampton, Rena M. Lindevaldsen, Mathew D. Staver and Anita L. Staver, Liberty Counsel, on brief for Liberty Counsel, Amicus Curiae.
Thomas M. Fisher , Solicitor General, Office of the Indiana Attorney General, Gregory F. Zoeller, Attorney General, Office of the Indiana Attorney General, Bill Schuette , Attorney General, State of Michigan, Mark L. Shurtleff , Attorney General, State of Utah, John W. Suthers , Attorney General, State of Colorado, and Alan Wilson, Attorney General, State of South Carolina, on brief for the States of Indiana, Colorado, Michigan, South Carolina, and Utah, Amici Curiae.
John A. Eidsmoe , Roy S. Moore and Benjamin D. DuPré , Foundation for Moral Law, on brief for Foundation for Moral Law, Amicus Curiae.
George I. Goverman on brief pro se, Amicus Curiae. Russell D. Raskin, Raskin & Berman, Abba Cohen and Mordechai Biser, Agudath Israel of America, on brief for Agudath Israel of America, Amicus Curiae. William C. Duncan , Marriage Law Foundation, and Joshua K. Baker, National Organization for Marriage, on brief for National Organization for Marriage, Amicus Curiae. Steven W. Fitschen and Douglas E. Myers on brief for the National Legal Foundation, Amicus Curiae. Stephen C. Whiting and The Whiting Law Firm on brief for Massachusetts Family Institute, Amicus Curiae. Kevin T. Snider , Pacific Justice Institute, on brief for Pacific Justice Institute, Amicus Curiae. Eric C. Bohnet on brief for Concerned Women for America, Amicus Curiae. Gary G. Kreep on brief for National Association for Research & Therapy of Homosexuality (NARTH), Amicus Curiae. Mary L. Bonauto with whom Gary D. Buseck , Vickie L. Henry , Janson Wu, Gay & Lesbian Advocates & Defenders, Paul M. Smit,h Luke C. Platzer, Matthew J. Dunne, Melissa A. Cox, Jenner & Block LLP, Claire Laporte, Ara B. Gershengorn, Matthew E. Miller, Amy Senier, Catherine Deneke, Foley Hoag LLP, David J. Nagle, Richard L. Jones, and Sullivan & Worcester LLP were on brief for plaintiffs, appellees Nancy Gill, et al., and plaintiff, appellee, crossappellant Dean Hara. Maura T. Healey, Assistant Attorney General, with whom Martha Coakley, Attorney General, Jonathan B. Miller, Assistant Attorney General, Christopher K. Barry-Smith , Assistant Attorney General, Mark C. Fleming, Felicia H. Ellsworth, Brian J. Boyle Jr., Alan E. Schoenfeld and Wilmer Cutler Pickering Hale and Dorr LLP were on brief for plaintiff, appellee Commonwealth of Massachusetts.
-3-

William F. Sheehan , Goodwin Procter LLP and Nathalie F.P.

Gilfoyle, American Psychological Association, on brief for the

American Psychological Association, the Massachusetts Psychological

Association, the American Psychiatric Association, the National

Association of Social Workers and its Massachusetts Chapter, the

American Medical Association, and the American Academy of

Pediatrics, Amici Curiae.

Clifford H. Ruprecht, Catherine R. Connors , Frank H. Bishop

and Pierce Atwood LLP on brief for historians Peter W. Bardaglio,

Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby

L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman,

Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen

Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine

Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary

L. Shanley, Amy Dru Stanley and Barbara Young Welke, Amici Curiae.

Patricia A. Peard, Ronald W. Schneider, Jr. , Bernstein Shur

and Katharine K. Baker, Professor of Law, Chicago-Kent College of

Law, on brief for Family Law Professors, Amici Curiae.

William L. Chapman, Emily Gray Rice , Orr & Reno, P.A. , Joan

Heifetz Hollinger, Lecturer-in-Residence, Child Advocacy Program,

University of CA, Berkeley School of Law, Courtney Joslin, Acting

Professor, UC Davis School of Law, and Katharine Silbaugh

,

Professor of Law and Law Alumni Scholar, on brief for Family and

Child Welfare Law Professors, Amici Curiae.

Robert G. Young, Daryl J. Lapp , Edwards Wildman Palmer LLP ,

James D. Esseks, Joshua A. Block , American Civil Liberties Union

Foundation, Shannon Minter, Christopher F. Stoll, National Center

for Lesbian Rights, Jon W. Davidson, and Peter Renn, Lambda Legal,

on brief for 31 Bar Associations, Public-Interest Organizations and

Legal Service Organizations, Amici Curiae.

Mirian R. Nemetz, Kathleen Connery Dawe, Michael B. Kimberly,

Mayer Brown LLP, and Heather C. Sawyer, Minority Counsel, Committee

on the Judiciary, Ranking Members John Conyers, Jr. and Jerrold

Nadler, on brief for Members of the U.S. House of Representatives-

Including Objecting Members of the Bipartisan Legal Advisory Group,

Representatives Nancy Pelosi and Steny H. Hoyer, Amici Curiae.

Alan B. Morrison , George Washington Law School, Anne L.

Weismann, Melanie Sloan, Citizens for Responsibility and Ethics in

Washington, on brief for Citizens for Responsibility and Ethics in

Washington, Amicus Curiae.

Sabin Willett, Beth I.Z. Boland and Bingham McCutchen LLP on

brief for 70 Business, Professional and Municipal Employers, and

Professional, Trade, and Civic Organizations Representing

Employers, Amici Curiae.

Jacob C. Cohn, Jeffrey I. Pasek and Cozen O'Connor on brief

for the Jewish Social Policy Action Network, Amicus Curiae.

James L. Linsey , Cohen, Weiss and Simon LLP , National

Association of Letter Carriers, Judith A. Scott, General Counsel,

-4-

Nicole G. Berner , Associate General Counsel, Laurel R. Webb , Assistant General Counsel, Service Employees International Union, David Borer, General Counsel, Leisha A. Self , Staff Counsel, American Federation of Government Employees, John C. Dempsey , General Counsel, American Federation of State, County and Municipal Employeees, David Strom, General Counsel, American Federation of Teachers, Thomas R. Carpenter, General Counsel, American Federation of Television and Radio Artists, Edward J. Gilmartin , General Counsel, Association of Flight Attendants, Alan S. Gordon, General Counsel, Deborah Allton-Maher, Eastern Counsel, American Guild of Musical Artists, Patrick J. Szymanski, General Counsel, Change to Win, Mary K. O'Melveny, General Counsel, Communications Workers of America, National Education Association, Duncan Crabtree-Ireland, General Counsel, Danielle S. Van Lier, Assistant General Counsel, Screen Actors Guild, David Rosen , General Counsel, Transport Workers Union of America, Michael Nicholson, General Counsel, International Union, UAW, Nick Clark, General Counsel, United Food and Commercial Workers International Union, American Federation of Musicians, Clinton J. Miller III, General Counsel, Erika A. Diehl, Assistant General Counsel, United Transportation Union, Richard J. Brean, General Counsel, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, and Bradley T. Raymond , General Counsel, International Brotherhood of Teamsters, on brief for Labor Organizations, Amici Curiae.
Harvey J. Wolkoff , Jessica M. Lindemann , Russell P. Plato , Samuel P. Bickett, Ropes & Gray LLP, Robert O. Trestan, Steven C. Sheinberg, Steven M. Freeman , Deborah Bensinger , Anti-Defamation League, on brief for Anti -Defamation League, Andover Newton Theological School, California Council of Churches, California Faith for Equality, Central Conference of American Rabbis, General Synod of the United Church of Christ, Hadassah, the Women's Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Alliance for Law & Social Action, Jewish Reconstructionist Federation, MA Conference of the United Church of Christ, National Council of Jewish Women, People for the American Way Foundation, Society for Humanistic Judaism, Union for Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Legislative Ministry California, the Unitarian Universalist Ministers Association, the Universal Fellowship of Metropolitan Community Churches, and Women of Reform Judaism, Amici Curiae.
May 31, 2012
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BOUDIN, Circuit Judge . These appeals present
constitutional challenges to section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to samesex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23--which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)--the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision; 1 many more states responded by banning same-sex marriage by statute or constitutional amendment.2
1E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
2E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May
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Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must--having only two operative paragraphs--be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for purposes of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves
13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).
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federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,0003. Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM , No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal f unding for programs tied to DOMA's opposite-sex marriage definition--such as Massachusetts' state Medicaid program and veterans' cemeteries.

3U.S. Census Bureau, Census Bureau Releases Estimates of

Same-Sex

Married

Couples

(Sept.

27,

2011),

http://www.census.gov/newsroom/releases/archives/2010_census/cb11

-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or

Spouse Households by Sex of Householder by Presence of Own

Children: 2010 Census and 2010 American Community Survey

,

http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last

visited May 22, 2012).

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By combining the income of individuals in same-sex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gillv. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth's argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court's judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification--discussed separately below-the federal defendants have throughout focused solely upon the district court's premise that DOMA is unconstitutional.
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The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a "heightened scrutiny" standard and that DOMA failed under that standard. It opposed the sepa rate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department's about face while defense of the statute passed to a group of Republican leaders of the House of Representatives--the Bipartisan Legal Advisory Group ("the Legal Group")--who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and "legislative facts" bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common
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knowledge. Daggett v. Comm'n on Governm ental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state's refusal to recognize same-sex marriage violated
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federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicksv. Miranda, 422 U.S. 332, 344 (1975). Following Baker , "gay rights" claims prevailed in several well k nown decisions, Lawrence v. Texas , 539 U.S. 558 (2003), and Romer v. Evans , 517 U.S.620 (1996), 4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal "prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
4Lawrence struck down Texas' statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrencerested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny--applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.
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Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving "suspect" classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications--race, alienage and national origin--require what the Court calls strict scrutiny, which entails both a compelling governmental interest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the "last resort of constitutional argument," Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual
5United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).
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basis, Williamson v. Lee Optical of Oklahoma, Inc. , 348 U.S. 483, 487-88 (1955), without regard to Congress' actual motives. Beach Commc'ns, 508 U.S. at 314. Means need not be narrowly drawn to meet--or even be entirely consistent with--the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gillplaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the socalled intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined
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to create a major new category of "suspect classification" for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded "Don't Ask, Don't Tell" policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications--in particular, by implying an overruling of Bake,r which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Rome-r-a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.
However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
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In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions--not classic rational basis review--that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation's fit--finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a "bare congressional desire to harm a politically unpopular group." Id. at 534, 537-38.
The second, City of Cleburnev. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as applied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental
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disability too had no connection to alleged concerns about population density. All that remained were "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding." Id. at 448.
Finally, in Romer v. Evans , 517 U.S. 620 (1996), the Court struck down a provision in Colorado's constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling "unprecedented" the "disqualification of a class of persons from the right to seek specific protection from the law," deemed the provision a "status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this--both favorably, City of Cleburn,e 473 U.S. at 45155 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the
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circumstances of the case and not dependent entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential "rational basis" test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination.
United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi,
J., concurring) (citing City of Cleburne as an example). There is
nothing remarkable about this: categories are often approximations
and are themselves constructed by weighing of underlying elements.
All three of the cited cases--Moreno , City of Cleburne
and Romer--stressed the historic patterns of disadvantage suffered
by the group adversely affected by the statute. As with the women,
the poor and the mentally impaired, gays and lesbians have long been
the subject of discrimination. Lawrence , 539 U.S. at 571. The
Court has in these cases undertaken a more careful assessment of the
justifications than the light scrutiny offered by conventional
rational basis review.
As for burden, the combined effect of DOMA's restrictions
on federal benefits will not prevent same-sex marriage where
permitted under state law; but it will penalize those couples by
limiting tax and social security benefits to opposite-sex couples
6E.g., Ramos v. Town of Vernon , 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denie,d 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).
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in their own and all other states. For those married same-sex

couples of which one partner is in federal service, the other cannot

take advantage of medical care and other benefits available to

opposite-sex partners in Massachusetts and everywhere else in the

country.

These burdens are comparable to those the Court found

substantial in Moreno, City of Cleburne, and Romer. Moreno, like

this case, involved meaningful economic benefits; City of Cleburne

involved the opportunity to secure housing; Romer, the chance to

secure equal protection of the laws on the same terms as other

groups. Loss of survivor's social security, spouse-based medical

care and tax benefits are major detriments on any reckoning;

provision for retirement and medical care are, in practice, the main

components of the social safety net for vast numbers of Americans.

Accordingly, we conclude that the extreme deference

accorded to ordinary economic legislation in cases like Lee Optical

would not be extended to DOMA by the Supreme Court; and without

insisting on "compelling" or "important" justifications or "narrow

tailoring," the Court would scrutinize with care the purported bases

for the legislation. Before pr oviding such scrutiny, a separate

element absent in Moreno

, City of Cleburne

, and

Romer--federalism--must be considered.

Federalism. In assailing DOMA, the plaintiffs and

especially the Commonwealth rely directly on limitations attributed

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to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations--such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)--Congress has provided its own definitions limited to the particular program or personnel involved. But no
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precedent exists for DOMA's sweeping general "federal" definition of marriage for all federal statutes and programs.
Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States , 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the "germaneness" requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole , 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole , the
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Supreme Court upheld a condition by which federal funds for highway construction depended on a state's adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez , 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin
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Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7
cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA
a "considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and
welfare of their citizens").
True, these federalism cases examined the reach of
federal power under the Commerce Clause and other sources of
constitutional authority not invoked here; but a statute that
violates equal protection is likewise beyond the power of Congress.
See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that
DOMA intrudes broadly into an area of traditional state regulation,
a closer examination of the justifications that would prevent DOMA
from violating equal protection (and thus from exceeding federal
authority) is uniquely reinforced by federalism concerns.
DOMA's Rationales. Despite its ramifying application
throughout the U.S. Code, only one day of hearings was held on DOMA,
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm.
7The majority, focusing on the related issue of fit, said that "a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating "because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination." Id. at 2520 (Thomas, J., concurring in part and dissenting in part).
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on the Constitution of the H. Comm. on the Judiciary, 104th Cong.
(1996) ("Hearing"), and none of the testimony concerned DOMA's
effects on the numerous federal programs at issue. Some of the
odder consequences of DOMA testify to the speed with which it was
adopted.8
The statute, only a few paragraphs in length, is devoid
of the express prefatory findings commonly made in major federal
laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400;
21 U.S.C. § 801; 29 U.S.C. § 151; id. § 1001; 42 U.S.C. § 7401.
Accordingly, in discerning and assessing Congress' basis for DOMA
our main resort is the House Committee report and, in lesser
measure, to variations of its themes advanced in the briefs before
us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
8For example, DOMA's definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on anti-nepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.
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H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to
section 3--indeed, is antithetical to it--but was concerned solely with section 2, which reserved a state's power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality.
First, starting with the most concrete of the cited reasons--"preserving scarce government resources"--it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe , 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal

9Cong. Budget Office, The Potential Budgetary Impact of

Recognizing Same-Sex Marriages

(2004), available at

http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5

559/06-21-samesexmarriage.pdf.

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protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co. , 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group's brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem,
10The House Report refers obliquely to the importance of heterosexual marriage in "encouraging responsible procreation and child-rearing," H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that "heterosexual marriage provides the ideal structure within which to beget and raise children." Hearing, supra , at 1 (opening statement of Rep. Canady).
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Lee Optical, 348 U.S. at 487-88; City of Cleburne , 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA's stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality "morally wrong"). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrenceruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Finally, it has been suggested by the Legal Group's brief that, faced with a prospective change in state marriage laws, Congress was entitled to "freeze" the situation and reflect. But
-27-

the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report's own arguments--moral, prudential and fiscal--make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court's decision in Baehr , that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id.at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.
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Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia , 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of mo tives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as "mere moral disapproval of an excluded group," Lawrence , 539 U.S. at 585 (O'Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on
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belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara's Health Benefits Claim . A distinct, if much narrower, issue is raised by Dean Hara, one of the Gillplaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a
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further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt. , No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).
Hara was married under Massachusetts law to a nowdeceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman's Federal Employees' Health Benefit Plan ("FEHBP"). For this, (1) Hara would have to be an eligible "annuitant" under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for "self and family," which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management ("OPM") had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board ("MSPB" or "Board") and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the
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DOMA issue in this circuit. Hara , No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now--as at the time the district court issued its judgment--a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara's claim for FEHBP health enrollment because of the Congressman's failure to elect "self and family" coverage. Although the district court found DOMA unconstitutional, it refused to resolve Hara's health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed , maintaining the district
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court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.
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ADDENDUM
SECTION. 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
"1738C. Certain acts, records, and proceedings and the effect thereof.".
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
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(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: "7. Definition of 'marriage' and 'spouse'."
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 </s> No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
Respondents who were plaintiffs below are the Commonwealth of Massachusetts, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary Bowe-Shulman, Dorene Bowe-Shulman, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened in the court of appeals to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and statutory provisions involved . . . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 11
A. This Court’s review is warranted because the court of appeals invalidated an Act of Congress . . . . . 13
B. The decision below raises important questions of federal law that should be settled by this Court . . . . . 14
C. Authoritative resolution of the question presented is of great public importance . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Appendix A – Opinion of the court of appeals
(May 31, 2012) . . . . . . . . . . . . . . . . . . . . . . . 1a Appendix B – Opinion of the district court, Gill v.
Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 29a Appendix C – Order of the district court, Gill v. Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 73a Appendix D – Amended judgment of the district court, Gill v. Office of Personnel Management (Aug. 17, 2010) . . . . . . . . . . . . . . . . . . . . . . 75a Appendix E – Opinion of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 82a Appendix F – Order of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . 121a Appendix G – Judgment of the district court, Massachusetts v. United States Department of Health & Human Services (Aug. 12, 2010) . . . . 123a
(III)

IV

Table of Contents—Continued:

Page

Appendix H – Constitutional and statutory provisions . . . . . . . . . . . . . . . . . . . . . . . . . 125a

Cases:

TABLE OF AUTHORITIES

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 14
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . 3
Baker v. Nelson:
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . . . 8
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) . . . . . . . . . 16, 19, 20, 21
Blodgett v. Holden, 275 U.S. 142 (1927) . . . . . . . . . . . . . . . 14
Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . 14
Bowen v. Gilliard, 483 U.S. 587 (1987) . . . . . . . . . . . . . . . . 16
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . 19
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . . . . 20
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . 9, 14, 15, 16, 17

V

Cases—Continued:

Page

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . 15
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009) . . . . . . . . 6, 9, 18, 19, 21
Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . 13
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998) . . . . . . . . . . . . . . . . . . . 20
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) . . . . . 15
Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 21
Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . . . . . . . . 3
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . 19
Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . 14
Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . 17
Heller v. Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . 6
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . 16, 19, 20, 21
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . 12
Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . 10, 16, 17, 20
Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 542 U.S. 1081 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006) . . . . . . . . . . . . . . . . . . . . 5

VI

Cases—Continued:

Page

National Gay Task Force v. Board of Educ., 729 F.2d 1270 (10th Cir. 1984), aff ’d by an equally divided court, 470 U.S. 903 (1985) . . . . . . . . . . . . . . . . . . 19
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. . . . . . . . . . . . . . . . . 12
Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) . . . . . . . . 20
Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . . 13
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997) . . . . . . . . . . . . . . . . . . . 19
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . 9, 16, 18
Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . 14, 19
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) . . . . . . . 14
South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . 5
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) . . . . . . . . . . 19
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996) . . . . . . . . . . . . . . . . . . . 19
United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 14
United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . 14
United States v. Stevens, 130 S. Ct. 1577 (2010) . . . . . . . . 14
United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 15 United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . 14 United States Dep’t of Agric. v. Moreno, 413 U.S. 528
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII

Cases—Continued:

Page

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . 13
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) . . . . . . . . . 19, 20

Constitution, statutes and rule:

U.S. Const.: Art. I, § 8, Cl. 1 (Spending Clause) . . . . . . . . . . . . . . . 5, 10 Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8, 11, 18 Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . 2, 11 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . . passim
5 U.S.C. 8901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. 106 (2006 & Supp IV 2010) . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 42 U.S.C. 402(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 402(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 17, 18
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/ opa/pr/ 2011/February/11-ag-223.html . . . . . . . . . . 6, 7, 12

VIII

Miscellaneous—Continued:

Page

U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/new.items/ d04353r.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

In the Supreme Court of the United States
No. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS v.
COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States Department of Health and Human Services et al., respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a28a) is not yet reported but is available at 2012 WL 1948017. The opinion of the district court in Gill v. Office of Personnel Management (App., infra, 29a-72a) is reported at 699 F. Supp. 2d 374. The opinion of the district court in Massachusetts v. United States Depart-
(1)

2
ment of Health & Human Services (App., infra, 82a120a) is reported at 698 F. Supp. 2d 234.
JURISDICTION
The judgment of the court of appeals was entered on May 31, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 125a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only

3
to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including respondent Massachusetts, have since recognized such marriages under their respective laws. See App., infra, 2a-3a nn.1-2; Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that recognize them, it excludes all such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/ new.items/d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18; App., infra, 3a-4a, 13a-14a. 2. a. The individual respondents are seven same-sex couples married in Massachusetts and three surviving spouses of same-sex couples married in Massachusetts. They filed suit in the United States District Court for the District of Massachusetts, alleging that, as a result

4 of Section 3, they had been denied certain federal benefits otherwise available to married couples or surviving spouses, including federal health plan benefits for spouses of federal employees, see 5 U.S.C. 8901 et seq.; social security benefits for surviving spouses of insured individuals, see 42 U.S.C. 402(f) and (i), and benefits based on the earnings record of a spouse; and the ability to file federal income tax returns as married joint filers or to exclude the value of employer-provided health insurance coverage for a spouse from federally taxable income, see 26 U.S.C. 106 (2006 & Supp. IV 2010). Second Am. Compl. ¶¶ 67-413, Gill v. Office of Pers. Mgmt., No. 1:09-cv-10309 (D. Mass. May 25, 2010); see App., infra, 4a, 10a. They contended that Section 3 violates the right of equal protection secured by the Fifth Amendment and sought to enjoin Section 3’s enforcement, as well as other relief. Ibid.
Respondent Massachusetts filed a separate action challenging the constitutionality of Section 3 of DOMA. Massachusetts alleged that, as a result of Section 3, it would risk loss of federal funding if it treated legally married same-sex couples as married for purposes of determining eligibility for participation in the State’s Medicaid program or for burial as a spouse of a veteran in a veterans’ cemetery funded in part by federal grants. Compl. ¶¶ 46-79, Massachusetts v. United States Dep’t of Health & Human Servs., No. 1:09-cv-11156 (D. Mass. July 8, 2009); see App., infra, 4a-5a. Massachusetts contended that Section 3 violates the Tenth Amendment and principles of federalism and the Spending Clause as applied to the Medicaid and State Cemetery Grants Program. Massachusetts sought to enjoin enforcement of Section 3, as well as other relief. Compl. ¶¶ 80-100, Massachusetts, supra.
b. In separate opinions issued on the same day, the district court held Section 3 of DOMA unconstitutional

5 and entered judgment against petitioners. App., infra, 29a-72a, 75a-81a. Ruling in favor of the individual respondents in Gill, the court concluded that Section 3 violates the Fifth Amendment’s equal protection guarantee. Without addressing respondents’ argument that Section 3 should be subject to strict constitutional scrutiny, the district court concluded that Section 3 “fails to pass constitutional muster even under the highly deferential rational basis test,” id. at 51a, because “ ‘there exists no fairly conceivable set of facts that could ground a rational relationship’” between the classification employed in DOMA Section 3 “and a legitimate government objective,” ibid. (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006)); see id. at 51a-71a.
In a separate opinion, the district court ruled in favor of Massachusetts on its action. App., infra, 82a-120a. The court concluded that Section 3 violates the Spending Clause because it impermissibly “induce[s] the States to engage in activities that would themselves be unconstitutional” by conditioning federal funds on the denial of marriage-based benefits to legally married same-sex couples without a rational basis for the differential treatment. Id. at 108a (quoting South Dakota v. Dole, 483 U.S. 203, 210 (1987)). The court further concluded that Section 3 violates the Tenth Amendment because it “plainly intrudes on a core area of state sovereignty— the ability to define the marital status of its citizens.” Id. at 111a.
The district court enjoined petitioners from enforcing Section 3, but stayed its order pending appeal. App., infra, 5a.
3. The government appealed in both cases, and the cases were consolidated in the court of appeals. In its opening brief, the government explained that binding First Circuit precedent holds that classifications based

6 on sexual orientation are subject to rational basis review, rather than the more searching review applicable to constitutionally suspect or quasi-suspect classifications such as race, national origin, gender, or illegitimacy. Gov’t Initial C.A. Br. 25-26 (citing Cook v. Gates, 528 F.3d 42, 60, 62 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009)). Pointing to this Court’s cases holding that a classification subject to rational basis review “must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 27 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)), the government argued that Section 3 satisfies that “highly deferential” standard, id. at 26, 29-55.
After the government filed its opening brief in this case, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (Attorney General Letter).1 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the rele-
1 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

7 vance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
After the Attorney General’s letter, the government informed the First Circuit that it would no longer defend the constitutionality of Section 3 and sought to withdraw its opening brief. The court of appeals denied the government’s motion but permitted the government to file a superseding brief. 6/16/11 Order 2. The government thereafter filed a superseding brief in the court of appeals in which it set forth its view that Section 3 is unconstitutional under heightened scrutiny. The government argued that the legislative purposes motivating

8 the enactment of Section 3, as articulated in the 1996 House Report, are insufficient to justify the exclusion of same-sex couples legally married in their States from federal benefits available to other married couples. See Gov’t Superseding C.A. Br. 22-23.
Respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.2 The court of appeals granted the motion. 6/16/11 Order 2.
4. The individual respondents petitioned for initial hearing en banc. The court of appeals denied the petition, with three judges dissenting. A panel of the court of appeals then affirmed the judgment of the district court in part, holding DOMA Section 3 invalid under the equal protection component of the Fifth Amendment. App., infra, 1a-28a.
At the outset, the court of appeals distinguished the question at issue in this case from the question whether a State constitutionally may choose to limit marriage to persons of the opposite sex. App., infra, 7a-8a; see also id. at 23a-24a. The court thus rejected BLAG’s threshold argument that “any equal protection challenge to DOMA is foreclosed” by this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision upholding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, see Baker v. Nelson, 191 N.W.2d 185, 185187 (1971). App., infra, 7a. The court of appeals reasoned that because Baker concerned a different question, the Court’s summary dismissal cannot resolve this
2 Two of the group’s five members declined to support intervention. BLAG C.A. Mot. to Intervene 1 n.1 (May 20, 2011).

9 case. Id. at 8a. In the court’s view, however, Baker “does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Ibid.
To evaluate the constitutionality of Section 3, the court concluded that it was bound by its precedent to apply rational basis review. App., infra, 10a (citing Cook, supra). The court determined that Section 3’s challengers could not prevail under what it termed “classic rational basis review,” id. at 11a—i.e., “rational basis review as conventionally applied in routine matters of commercial, tax and like regulation,” id. at 9a—under which “[c]ourts accept as adequate any plausible factual basis” for a law that distinguishes between different groups of people, “without regard to Congress’ actual motives” or to whether Congress’s chosen means are “entirely consistent with” its legislative ends, ibid.
The court of appeals concluded, however, that Section 3 warrants more searching review than “the extreme deference accorded to ordinary economic legislation.” App., infra, 14a. The court of appeals relied for that conclusion on cases in which this Court has “struck down state or local enactments without invoking any suspect classification” where “the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.” Id. at 11a-12a (citing United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996)). The court of appeals noted that, in each of those cases, the Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute” and “undert[ook] a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review,” id. at 13a, focusing on “the case-specific

10 nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered,” id. at 12a. The court of appeals concluded that Section 3 warrants similarly careful review because “gays and lesbians have long been the subject of discrimination,” id. at 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)), and because Section 3 imposes substantial burdens on married same-sex couples by precluding access to “medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country,” id. at 14a.
In the court of appeals’ view, that analysis “is uniquely reinforced by federalism concerns.” App., infra, 18a. The court concluded that, while “neither the Tenth Amendment nor the Spending Clause invalidates DOMA,” id. at 14a, Section 3 represents a broad intrusion on the States’ historic powers to regulate domestic relations, and, as such, warrants more searching examination of the purported bases for the legislation, id. at 14a-18a.
The court of appeals concluded that the rationales for Section 3, as reflected in the 1996 House Report and amplified in briefing, are insufficient to justify the statute’s burden on same-sex married couples. App., infra, 18a-24a. The court reasoned that neither a desire to “preserv[e] scarce government resources” nor to express moral disapproval, without more, justifies differential treatment of “a historically disadvantaged group,” id. at 19a-20a. It further reasoned that Section 3 lacks “any demonstrated connection” to a statutory purpose of “support[ing] child-rearing in the context of stable marriage” or of promoting heterosexual marriage, since Section 3 neither precludes same-sex couples in Massachusetts from raising children nor “affect[s] the gender choices of those seeking marriage” in that State. Id. at 20a-21a.

11
Finally, the court rejected the argument that, in the face of “a prospective change in state marriage laws, Congress was entitled to ‘freeze’ the situation and reflect,” explaining that “[t]he House Report’s own arguments—moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.” App., infra, 22a. And while the House Report “did emphasize a related concern * * * that state judges would impose same-sex marriage on unwilling states,” the court explained that States can “protect themselves against what their citizens may regard as overreaching,” and that the concern in any event is addressed by Section 2 of DOMA, which is not at issue in this case. Ibid.
In evaluating Section 3’s constitutionality, the court of appeals “d[id] not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App., infra, 23a. The court reasoned that “[t]he many legislators who supported DOMA acted from a variety of motives,” including a desire to “preserve the heritage of marriage as traditionally defined.” Ibid. But the court concluded that Section 3 is invalid because the “denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Id. at 24a.
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. The court of appeals correctly concluded that none of the rationales for Section 3’s passage justifies such disparate treatment of same-sex married couples. Section 3 therefore violates the guarantee of equal protection secured by the Fifth Amendment.

12
Although the Executive Branch agrees with the court of appeals’ determination that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As federal officials charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a federal statute on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).3
3 The fact that the government agrees with respondents that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department's position in this case. The Department did not oppose the subsequent interven-

13
This Court’s review is warranted because the court of appeals invalidated an Act of Congress, and because the court of appeals’ decision raises important questions concerning the proper standards for reviewing classifications based on sexual orientation that should be resolved by this Court. Authoritative resolution of the question presented is of great importance to the United States and to respondents and tens of thousands of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law. The petition for a writ of certiorari should be granted.
A. This Court’s Review Is Warranted Because The Court Of Appeals Invalidated An Act Of Congress
Review by this Court is warranted because the court of appeals invalidated a provision of an Act of Congress as unconstitutional. Although no other court of appeals
tion by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation). Because the Executive Branch petitioners have properly invoked the jurisdiction of this Court, there is no need for the Court to address the question whether BLAG has independent standing to seek review of the court of appeals’ decision.

14
has yet passed on the constitutionality of Section 3 of DOMA, this Court’s ordinary practice is to grant review when a court of appeals holds a federal statute unconstitutional, even in the absence of a circuit conflict. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000); National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty” of the courts. Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Respect for a coequal branch of government counsels in favor of reviewing a lower court’s exercise of “the grave power of annulling an Act of Congress.” United States v. Gainey, 380 U.S. 63, 65 (1965).
B. The Decision Below Raises Important Questions Of Federal Law That Should Be Settled By This Court
Review is also warranted because the court of appeals’ invalidation of Section 3 raises important questions of federal law that have not been, but should be, settled by this Court. See Sup. Ct. R. 10(c).
1. The Constitution’s equal protection guarantee, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a basic requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

15 Under this Court’s precedents, general social and economic legislation is ordinarily presumed valid, even though it may draw distinctions between different classes of individuals. Cleburne, 473 U.S. at 440. The Court will thus generally uphold such legislation if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). This Court has held that this deferential framework of review does not, however, apply to legislation that classifies on the basis of certain characteristics, including race, national origin, illegitimacy, and gender, that are deemed “suspect” or “quasi-suspect.” “These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.” Cleburne, 473 U.S. at 440-441. The law thus calls for more searching constitutional review of such classifications to determine whether they are adequately justified by legitimate state interests. Heightened scrutiny calls on courts to examine only the “actual [governmental] purposes” underlying such classifications rather than “rationalizations for actions in fact differently grounded,” United States v. Virginia, 518 U.S. 515, 535-536 (1996), and to determine, at a minimum, whether the classification bears a substantial relationship to an important governmental objective, Clark v. Jeter, 486 U.S. 456, 461 (1988). This Court’s cases have identified a number of factors to guide the determination whether heightened scrutiny applies to legislation targeting certain classes of individuals for less favorable treatment. These factors include: (1) whether the group in question has suf-

16 fered a history of discrimination; (2) whether members of the group share obvious, immutable, or distinguishing characteristics; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion); see also Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Cleburne, 473 U.S. at 435-441.
2. Section 3 of DOMA draws distinctions between couples who are legally married under their States’ laws based on their sexual orientation. It excludes same-sex married couples—whether men or women—from the federal recognition and benefits available to oppositesex married couples.
This Court has never decided the appropriate equal protection framework for reviewing classifications based on sexual orientation. Cf. Romer v. Evans, 517 U.S. 620, 634-635 (1996) (invalidating a state constitutional amendment prohibiting any state or local action designed to protect gay and lesbian individuals as lacking a rational basis, without considering whether the classification warranted heightened scrutiny). The factors the Court has identified as relevant to the inquiry, however, counsel strongly in favor of treating sexual orientation classifications with suspicion.
As the court of appeals noted, “gays and lesbians have long been the subject of discrimination.” App., infra, 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465-466 (7th Cir. 1989) (“Homosexuals have suffered a history of discrimination and still do, though possibly

17 now in less degree.”), cert. denied, 494 U.S. 1004 (1990). Gay and lesbian individuals also represent a “minority,” App., infra, 22a, that has “historically been less able to protect itself through the political process,” id. at 20a. That group is defined by a distinguishing characteristic—sexual orientation—that is not ordinarily “relevant to interests the State has the authority to implement,” Cleburne, 473 U.S. at 441. Heightened scrutiny of legislative classifications based on sexual orientation is therefore warranted to ensure that they do not “invidiously relegat[e]” gay and lesbian individuals to “inferior legal status,” Frontiero, 411 U.S. at 687 (plurality opinion), based simply on a view that gay and lesbian individuals as a class “are not as worthy or deserving as others,” Cleburne, 473 U.S. at 440.
Section 3 of DOMA fails under heightened scrutiny. The disparate treatment of gay and lesbian individuals who are legally married under state law does not substantially advance any important governmental purpose that motivated the enactment of Section 3.
To begin with, because Section 3 does not purport to forbid same-sex marriage, but instead simply denies federal benefits to same-sex couples who are already married, it does not meaningfully advance any cognizable federal interest in “defending and nurturing the institution of traditional, heterosexual marriage.” 1996 House Report 12. Nor does denying benefits to samesex married couples substantially further an interest in “encouraging responsible procreation and child-rearing.” Id. at 13.
This Court’s cases, moreover, have made clear that neither moral disapproval nor the desire to preserve “scarce government resources,” 1996 House Report 12, adequately justifies legislation that targets suspect or quasi-suspect classes for adverse treatment, see Law-

18 rence, 539 U.S. at 577; Graham v. Richardson, 403 U.S. 365, 374-375 (1971).
Finally, insofar as the House Committee Report cited the federal government’s interest in “protecting state sovereignty and democratic self-governance,” it cited that rationale in connection with Section 2, not Section 3. 1996 House Report 16-18. Section 3 bears no substantial connection to that rationale in any event; it was not, for example, “framed as a temporary measure” to facilitate the States’ own choices about whether to recognize same-sex marriage, App., infra, 22a, but instead was designed indefinitely to deny recognition to same-sex married couples for purposes of a wide array of federal statutes and programs, regardless of the content of state law.
The mismatch between Section 3’s stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals “not to further a proper legislative end but to make them unequal to everyone else.” Romer, 517 U.S. at 635; see 1996 House Report 15 n.53 (suggesting that “[m]aintaining a preferred societal status of heterosexual marriage” will “promot[e] heterosexuality”); id. at 16 (citing “a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”). Section 3 accordingly violates the guarantee of equal protection secured by the Fifth Amendment.
3. The First Circuit, like every other court of appeals that has addressed the issue to date, concluded in a prior case that classifications based on sexual orientation are subject to rational basis review, rather than the heightened scrutiny applicable to suspect or quasi-suspect classifications. See Cook v. Gates, 528 F.3d 42, 61 (2008), cert. denied, 556 U.S. 1289 (2009)). Neither Cook nor any other case has, however, offered an explanation for that

19
conclusion that withstands scrutiny under this Court’s precedents.4
The earliest court of appeals decisions addressing the issue simply assumed without explanation that gay and lesbian individuals are not a suspect or quasi-suspect class. See, e.g., Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence, supra; National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam).
Following this Court’s now-overruled decision upholding a state law criminalizing sodomy, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, supra, some courts of appeals relied on that holding to conclude that discrimination against gay and lesbian individuals is presumptively constitutional. Those courts reasoned that they could not “constitute either a ‘suspect class’ or a ‘quasi-suspect class’ ” if “the conduct which defined them as homosexuals was constitutionally proscribable.”
4 Cook and a number of cases in other circuits involved challenges to military policies on “homosexual conduct.” See 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays, 895 F.2d at 565; Ben- Shalom, 881 F.2d at 456; Woodward v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990). As a number of those courts have noted, because Congress’s authority to raise and support armies commands special judicial deference, classifications in the military context may present different questions from classifications in the civilian context. Rostker, 453 U.S. at 64-65, 70 (upholding male-only selective service registration against sex-discrimination challenge); see Goldman v. Weinberger, 475 U.S. 503, 507-509 (1986) (upholding military dress regulations barring the wearing of a yarmulke against First Amendment challenge); see also, e.g., Steffan, 41 F.3d at 685 (citing the “special deference” owed “to the ‘considered professional judgment’ of ‘appropriate military officials’ ”) (quoting Goldman, 475 U.S. at 509).

20 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998); accord Ben-Shalom, 881 F.2d at 464; Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); see also High Tech Gays, 895 F.2d at 570-571 (relying in part on Ben-Shalom, Woodward, and Padula to conclude that gay and lesbian individuals are not a suspect or quasisuspect class); cf. Lawrence, 539 U.S. at 575 (noting that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”). This Court’s decision in Lawrence contradicts that basic premise.
Some courts of appeals also reasoned that gay and lesbian individuals differ from previously recognized suspect and quasi-suspect classes in that members of such classes, “e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.” Woodward, 871 F.2d at 1076; accord High Tech Gays, 895 F.2d at 573. Subsequent decisions of this Court have undermined that reasoning. See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (noting that this Court’s cases have “declined to distinguish between status and conduct in this context”) (citing, inter alia, Lawrence, 539 U.S. at 575, and id. at 583 (O’Connor, J., concurring in the judgment)); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Some courts have further suggested that heightened constitutional protection against invidious discrimination is unnecessary because gay and lesbian individuals “have the ability to and do ‘attract the attention of the lawmakers,’ ” as evidenced by the passage of anti-discrimination

21 legislation in some States. High Tech Gays, 895 F.2d at 574 (citing, inter alia, Ben-Shalom, 881 F.2d at 466). But this Court has not considered the passage of antidiscrimination laws in some States—or even by the federal government—to eliminate the need for searching judicial review of other laws that disadvantage a protected class. On the contrary, the plurality opinion in Frontiero cited the enactment of federal protections against sex discrimination as bolstering the conclusion that sex-based classifications are inherently invidious and thus deserving of heightened constitutional scrutiny. See 411 U.S. at 687-688.
Finally, the most recent decisions applying rational basis review, including the First Circuit’s decision in Cook, have simply relied on other courts’ decisions, see Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases), cert. denied, 543 U.S. 1081 (2005), or on the fact that this Court “has never ruled that sexual orientation is a suspect classification for equal protection purposes,” even though the Court has never squarely confronted that question, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); accord Cook, 528 F.3d at 61. No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents.
4. Although the court of appeals in this case acknowledged that there is “[s]ome similarity” between the factors underlying this Court’s decision to extend heightened scrutiny to gender-based classifications and those applicable to sexual orientation classifications, it concluded that circuit precedent foreclosed extending heightened scrutiny to sexual orientation classifications. App., infra, 10a (citing Cook, supra). But while the court determined that Section 3 would survive “conventional rational basis review,” id. at 9a, 13a, it concluded that

22
Section 3’s effect on a minority group that has been politically unpopular and has suffered a long history of discrimination, reinforced by federalism concerns, warranted application of “closer than usual” review, id. at 7a, 14a-15a, 22a. Thus, rather than extend to Section 3 the “extreme deference accorded to ordinary economic legislation,” id. at 14a, the court below examined the purposes underlying the enactment of Section 3 and found an insufficient connection to any legitimate governmental end to justify denying federal benefits to same-sex couples who are legally married under state law.
As the court of appeals itself acknowledged, the proper approach for reviewing the constitutionality of Section 3 is a matter that only this Court can resolve. See App., infra, 7a (“We have done our best to discern the direction of [Supreme Court precedent], but only the Supreme Court can finally decide this unique case.”). This Court’s review is warranted to consider the important questions raised by the decision below.
C. Authoritative Resolution Of The Question Presented Is Of Great Public Importance
1. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have a substantial impact on the conduct of a wide array of Executive functions. As a result of the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution. Other cases challenging the constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and defin-

23 itive ruling on Section 3’s constitutionality is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
2. To help ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion, the government is also filing today a petition for a writ of certiorari before judgment in Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal pending, No. 12-15388 (9th Cir. filed Feb. 24, 2012) and No. 12-15409 (9th Cir. filed Feb. 28, 2012).
In Golinski, supra, the district court held that heightened scrutiny applies to classifications based on sexual orientation and that Section 3 fails that standard of review. In the alternative, the district court held that Section 3 is invalid under rational basis review. Golinski provides an appropriate vehicle for the Court to consider the constitutionality of Section 3.

24
CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys
JULY 2012

APPENDIX A UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF, APPELLEE v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS, APPELLANTS
Nos. 10-2207 & 10-2214 DEAN HARA, PLAINTIFF, APPELLEE/CROSS-APPELLANT, NANCY GILL, ET AL., PLAINTIFFS, APPELLEES, KEITH TONEY, ET AL., PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., DEFENDANTS, APPELLANTS/CROSS-APPELLEES, HILARY RODHAM CLINTON, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF STATE,
DEFENDANT
Filed: May 31, 2012
(1a)

2a APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before: LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
BOUDIN, Circuit Judge. These appeals present constitutional challenges to section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to same-sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23—which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)—the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision;1
1 E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

3a
many more states responded by banning same-sex marriage by statute or constitutional amendment.2
Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must—having only two operative paragraphs—be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines “marriage” for purposes of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26
2 E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May 13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).

4a U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f ), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with samesex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of samesex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA’s opposite-sex marriage definition—such
3 U.S. Census Bureau, Census Bureau Releases Estimates of SameSex Married Couples (Sept. 27, 2011),http://www.census.gov/newsroom/ releases/archives/2010_census/cb11-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supptable-AFF.xls (last visited May 22, 2012).

5a
as Massachusetts’ state Medicaid program and veterans’ cemeteries.
By combining the income of individuals in same-sex marriages, Massachusetts’ Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal “veterans’ cemetery” status and gives the Department of Veterans’ Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth’s argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court’s judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification—discussed separately below—the federal defendants have throughout focused solely upon the district court’s premise that DOMA is unconstitutional.

6a
The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a “heightened scrutiny” standard and that DOMA failed under that standard. It opposed the separate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department’s about face while defense of the statute passed to a group of Republican leaders of the House of Representatives—the Bipartisan Legal Advisory Group (“the Legal Group”)—who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and “legislative facts” bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common knowledge. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess

7a
the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine—not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Following Baker,

8a
“gay rights” claims prevailed in several well known decisions, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996),4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving “suspect” classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications—race, alienage and national origin—require what the Court calls strict scrutiny, which entails both a compelling governmental in-
4 Lawrence struck down Texas’ statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny— applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.

9a terest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the “last resort of constitutional argument,” Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955), without regard to Congress’ actual motives. Beach Commc’ns, 508 U.S. at 314. Means need not be narrowly drawn to meet—or even be entirely consistent with—the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
5 United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).

10a
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the so-called intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined to create a major new category of “suspect classification” for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded “Don’t Ask, Don’t Tell” policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.

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However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions—not classic rational basis review—that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress’ decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation’s fit—finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a “bare congressional desire to harm a politically unpopular group.” Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as ap-

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plied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental disability too had no connection to alleged concerns about population density. All that remained were “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.” Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado’s constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling “unprecedented” the “disqualification of a class of persons from the right to seek specific protection from the law,” deemed the provision a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests.” Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this— both favorably, City of Cleburne, 473 U.S. at 451-55 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the circumstances of the case and not dependent

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entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential “rational basis” test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination. United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (citing City of Cleburne as an example). There is nothing remarkable about this: categories are often approximations and are themselves constructed by weighing of underlying elements. All three of the cited cases—Moreno, City of Cleburne and Romer—stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. As for burden, the combined effect of DOMA’s restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. For those married same-sex couples of which one partner is in federal service, the other cannot
6 E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).

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take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.
These burdens are comparable to those the Court found substantial in Moreno, City of Cleburne, and Romer. Moreno, like this case, involved meaningful economic benefits; City of Cleburne involved the opportunity to secure housing; Romer, the chance to secure equal protection of the laws on the same terms as other groups. Loss of survivor’s social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on “compelling” or “important” justifications or “narrow tailoring,” the Court would scrutinize with care the purported bases for the legislation. Before providing such scrutiny, a separate element absent in Moreno, City of Cleburne, and Romer—federalism—must be considered.
Federalism. In assailing DOMA, the plaintiffs and especially the Commonwealth rely directly on limitations attributed to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual

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scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)—Congress has provided its own definitions limited to the particular program or personnel involved. But no precedent exists for DOMA’s sweeping general “federal” definition of marriage for all federal statutes and programs. Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has

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traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the “germaneness” requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole, the Supreme Court upheld a condition by which federal funds for highway construction depended on a state’s adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spend-

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ing Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7 cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).
7 The majority, focusing on the related issue of fit, said that “a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating “because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.” Id. at 2520 (Thomas, J., concurring in part and dissenting in part).

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True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
DOMA’s Rationales. Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA, Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (“Hearing”), and none of the testimony concerned DOMA’s effects on the numerous federal programs at issue. Some of the odder consequences of DOMA testify to the speed with which it was adopted.8
The statute, only a few paragraphs in length, is devoid of the express prefatory findings commonly made in major federal laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400; 21 U.S.C. § 801; 29 U.S.C.
8 For example, DOMA’s definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on antinepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.

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§ 151; id. § 1001; 42 U.S.C. § 7401. Accordingly, in discerning and assessing Congress’ basis for DOMA our main resort is the House Committee report and, in lesser measure, to variations of its themes advanced in the briefs before us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to section 3—indeed, is antithetical to it—but was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality. First, starting with the most concrete of the cited reasons—“preserving scarce government resources”—it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more

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detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group’s brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
9 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/ default/files/cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf.
10 The House Report refers obliquely to the importance of heterosexual marriage in “encouraging responsible procreation and childrearing,” H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that “heterosexual marriage provides the ideal structure within which to beget and raise children.” Hearing, supra, at 1 (opening statement of Rep. Canady).

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Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples—whose marriages may in any event be childless, unstable or both—or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA’s treatment of samesex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA’s stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian)morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality “morally wrong”). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have

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undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group’s brief that, faced with a prospective change in state marriage laws, Congress was entitled to “freeze” the situation and reflect. But the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report’s own arguments— moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court’s decision in Baehr, that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id. at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require

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somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as “mere moral disapproval of an excluded group,” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in

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court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara’s Health Benefits Claim. A distinct, if much narrower, issue is raised by Dean Hara, one of the Gill plaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).

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Hara was married under Massachusetts law to a now-deceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman’s Federal Employees’ Health Benefit Plan (“FEHBP”). For this, (1) Hara would have to be an eligible “annuitant” under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for “self and family,” which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management (“OPM”) had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board (“MSPB” or “Board”) and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now—as at the time the district court issued its judgment—a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara’s claim for FEHBP health enrollment because of the Congressman’s failure to elect “self and family” coverage. Although the district court found DOMA unconstitutional, it refused to

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resolve Hara’s health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.

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ADDENDUM SECTION. 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”. SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: “§ 1738C. Certain acts, records, and proceedings and the effect thereof
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: “1738C. Certain acts, records, and proceedings and the effect thereof.”. SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

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“§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress,
or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: “7. Definition of ‘marriage’ and ‘spouse’.”

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APPENDIX B
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
MEMORANDUM
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically,
1 1 U.S.C. § 7. 2 Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J.

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Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA,
Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
3 Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4 In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996)

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which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, it provides that:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.6
In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being
6 1 U.S.C. § 7. 7 852 P.2d 44 (Haw. 1993). 8 See id. at 59-67. 9 Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside.

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waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.” 10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” 11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “preserve[] each State’s ability to decide” what should constitute a marriage under its own laws and to “lay[] down clear rules” regarding what constitutes a marriage for purposes of federal law.12
In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, Congress relied on its “express grant of authority,” under the second sentence of the Constitution’s Full Faith and Credit Clause, “to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.” 14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the
10 Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”].
11 Id. at 10. 12 Id. at 2. 13 Section 2 of DOMA provides that “[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” 14 Id. at 25.

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definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.” 16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’ ” 17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.” 18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” 20 In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.” 21
In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion”
15 Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16 Id. at 3. 17 Id. at 12. 18 Id. 19 Id. at 13, 18. 20 Id. at 16 (footnote omitted). 21 142 CONG. REC. H7480 (daily ed. July 12, 1996).

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and “an attack upon God’s principles.” 22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.” 24
Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined,
22 142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith).
23 Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”).
24 Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).

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prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
1. Health Benefits Based on Federal Employment
Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employ-
25 House Report at 10-11. 26 Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-9716). 27 U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.

36a ees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program.
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses.
Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program
The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers
28 “Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B).
29 5 U.S.C. § 8905.

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must meet in order to offer coverage under the program.30
The Office of Personnel Management (“OPM”) administers the FEHB and is empowered to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,” 32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.” 33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . .” 37 An employee enrolled in the FEHB for
30 Id. §§ 8901-8914. 31 Id. §§ 8902, 8903, 8906. 32 Id. § 8913. 33 Id. 34 Id. § 8906. 35 Id. §§ 8905, 8906. 36 5 C.F.R. § 890.302(a)(1). 37 Id. § 8901(5).

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“self only” coverage may change to “self and family” coverage by submitting documentation to the employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.” 38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the
38 See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39 See 5 U.S.C. § 8901(3)(B). 40 5 C.F.R. § 890.303(c). 41 5 U.S.C. §§ 8951, 8952, 8981, 8982. 42 Id. §§ 8951, 8954, 8981, 8984.

39a FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.” 47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” 48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
43 Id. §§ 8952(a), 8953, 8982(a), 8983. 44 Id. §§ 8962(a), 8992(a). 45 Id. §§ 8958(a), 8988(a). 46 Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47 Id. § 894.201(c). 48 Id. 894.509(a), (b). 49 See 5 U.S.C. §§ 8951(2), 8991(2).

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C. Flexible Spending Arrangement Program50
A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits
The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent]
50 Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program.” Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
51 26 U.S.C. § 125. 52 See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53 Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 54 42 U.S.C. §§ 901, 902.

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provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.” 55
A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert Burtis seeks Widower’s Insurance Benefits.
A. Retirement Benefits The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].” 57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-
55 Id. § 405(a); see id.§ 902(a)(5). 56 Id. §§ 402, 413(a), 414, 415. 57 Id. § 402(b), (c).

42a Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.60
ii. Widower’s Insurance Benefit The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or selfemployment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
58 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male.
59 Id. §§ 402(I), 413(a), 414(a), (b). 60 Id. §§ 402(I), 415(a). 61 Id. §§ 402(f), 413(a), 414(a), (b). 62 Id. § 402(f)(1); see id.§ 402(f)(3).

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3. Filing Status Under the Internal Revenue Code
Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In
63 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
64 Id. § 6013(b)(1), (2). 65 Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008).

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granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68
B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits
As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact. . . . Second, there must be causation—a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 69 Where the plaintiff lacks standing to pursue his claim, the
67 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68 This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously. 69 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain
70 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 71 5 U.S.C. § 8905(b). 72 5 U.S.C. § 8347(b). 73 See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985). 74 The appeal, however, has been stayed pending the outcome of this action.

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ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annu-

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ity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a ceiling, to coverage eligibility. Plaintiffs assert, therefore, that
75 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.” 77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “ ‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” 78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.” 79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.” 80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot plausibly
76 5 C.F.R. § 890.302(a)(1) (emphasis added). 77 One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 78 5 U.S.C. § 8901(5) (emphasis added). 79 United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 80 1 U.S.C. § 7.

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interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” 83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’ ”84 And it is because of this “commitment to the law’s neutrality
81 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82 In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

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where the rights of persons are at stake” 85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.86
To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” 87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” 88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry—if it bears a rational relationship to a legitimate government interest.90
85 Romer, 517 U.S. at 623. 86 Id. 87 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88 Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89 Id. 90 Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.

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Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” 91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” 92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded
91 Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted).
92 Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted).

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a strong presumption of validity . . . [and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” 93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.” 95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” 96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].” 97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” 98 Importantly, the objective served by the law must be not only a proper arena
93 Id. (internal citations omitted). 94 Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted). 95 Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96 Romer, 517 U.S. at 633. 97 Id. 98 Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”).

53a
for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.” 100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 101 As such, a law must fail rational basis review where the “purported justifications . . . [make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.” 102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA
99 Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441).
100 Heller v. Doe, 509 U.S. 312, 321 (1993). 101 City of Cleburne, 473 U.S. at 447. 102 Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103 House Report at 12-18.

54a
does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 104
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the
104 City of Cleburne, 473 U.S. at 446. 105 See Def.’s Mem. Supp. Mot. Dismiss, 19 n.10. 106 Def.’s Mem. Supp. Mot. Dismiss, 19 n.10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy. aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http:// www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/ cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_ parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm).

55a time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” 107 when afforded equal recognition under federal law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA
107 Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108 See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting). 109 Id.

56a
effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” 112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean” 113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.” 114
110 Romer, 517 U.S. at 632-33. 111 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112 Id. 113 United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114 Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone).

57a
Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . . ” 115
And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.” 117 This court can discern no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cog-
115 Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
116 This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of samesex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages.
117 Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).

58a nizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation
Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation.
In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.
In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118 City of Cleburne, 473 U.S. at 448.

59a
For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges.
119 See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156JLT (D. Mass. July 8, 2010) (Tauro, J.).
120 See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).

60a
There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. This is especially true where a statute deals with a familiar relationship [because] there is no federal law of domestic relations.” 122
This conclusion is further bolstered by an examination of the federal government’s historical treatment of state marital status determinations.123 Marital eligibility for heterosexual couples has varied from state to state throughout the course of history. Indeed, pursuant to the sovereign power over family law granted to the states by virtue of the federalist system, as well as the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise,” 124 individual states have changed their marital eligibility requirements in myriad ways over time.125 And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as
121 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
122 DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted).
123 This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
124 United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring).
125 See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982).

61a
valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law.126
By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
126 See, e.g., Dunn v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3) (Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1( j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any statesanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127 See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967).

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The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.” 128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.130
128 Def.’s Reply Mem., 14. 129 See NANCY COTT, PUBLIC VOWS 163 (2000). 130 Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 61415 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id. at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view

63a
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 131 And the absence of precedent for the legislative classification at issue here is equally instructive, for “‘discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [C]onstitution[]. . . . ’ ” 132
The government is certainly correct in its assertion that the scope of a federal program is generally determined with reference to federal law. But the historically entrenched practice of incorporating state law determinations of marital status where they are relevant to federal law reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest
that, in the United States, for the most part, family law is state law. . . . Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).
132 Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

64a in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo
133 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010).

65a
might help to achieve. Staying the course is not an end in and of itself, but rather a means to an end. Even assuming for the sake of argument that DOMA succeeded in preserving the federal status quo, which this court has concluded that it did not, such assumption does nothing more than describe what DOMA does. It does not provide a justification for doing it. This court does not doubt that Congress occasionally encounters social problems best dealt with by preserving the status quo or adjusting national policy incrementally.134 But to assume that such a congressional response is appropriate requires a predicate assumption that there indeed exists a “problem” with which Congress must grapple.135
134 The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135 Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on

66a
The only “problem” that the government suggests DOMA might address is that of state-to-state inconsistencies in the distribution of federal marriage-based benefits. But the classification that DOMA effects does not bear any rational relationship to this asserted interest in consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the
national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
136 RSA 457:4-5.

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federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex
137 City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
138 See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications . . . made no sense in light of how the [government] treated other groups similarly situated”).

68a marriage” 139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws—that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal
139 Def.’s Mem. Opp. Summ. Judg., 16.

69a
that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
140 See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141 See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/ d04353r.pdf.
142 8 U.S.C. § 1430. 143 8 U.S.C. § 1186b(2)(A). 144 See 5 U.S.C. § 6382.

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It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” 146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” 147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern
145 See Heller, 509 U.S. at 319-20 (internal citations omitted). 146 Id . at 321. 147 Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).

71a a relationship to legitimate [government] interests.” 148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
148 Romer, 517 U.S. at 635. 149 Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).

72a IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge

73a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
ORDER
TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that: 1. Defendants’ Motion to Dismiss [#20] is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant’s Motion to Dismiss [#20] is DENIED as to all claims, except Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED.

74a IT IS SO ORDERED.
/s/ [ILLEGIBLE] United States District Judge

75a
APPENDIX D
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
No. 1:09-cv-10309 JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: Aug. 17, 2010
AMENDED JUDGMENT
This action came on for a hearing before the Court on the Defendants’ Motion to Dismiss [#20] and Plaintiffs’ Motion for Summary Judgment [#25], and the issues having been duly heard and a Memorandum having been issued on July 8, 2010,
It is ORDERED AND ADJUDGED: The Plaintiffs’ Motion for Summary Judgment is ALLOWED and: (1) The rights of the Plaintiffs are declared as follows:

76a
(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), is unconstitutional as applied to the Plaintiffs by the Defendants in the administration and application of (1) the Federal Employees Health Benefits Program (“FEHB”), (2) the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), (3) the United States Postal Service Health Care Flexible Spending Account program (“Postal Service Health Care FSA”), (4) certain retirement and survivor benefit provisions of the Social Security Act, as set forth below, and (5) the Internal Revenue Code.
(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f ) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse,

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Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security LumpSum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management (“OPM”) is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 of DOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from “self only” to “self and family” so as to provide coverage for his spouse, Plaintiff James Fitzgerald;

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(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara’s application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
(b) to review the Plaintiff Jo Ann Whitehead’s application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, without regard to Section 3 of DOMA;
(c) to review the Plaintiff Randell LewisKendell’s application for the Social Security LumpSum Death Benefit without regard to Section 3 of DOMA; and
(d) to review the Plaintiff Herb Burtis’s application for the Social Security Lump-Sum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate pro-

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vided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054.
(b) For the taxable year ending December 31, 2005: $2,703.
(c) For the taxable year ending December 31, 2006: $4,390.
(d) For the taxable year ending December 31, 2007: $6,371.
(e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
(a) For the taxable year ending December 31, 2004: $4,687.
(b) For the taxable year ending December 31, 2005: $3,785.
(c) For the taxable year ending December 31, 2006: $5,546.

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(d) For the taxable year ending December 31, 2007: $5,697.
(e) For the taxable year ending December 31, 2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America:
(a) For the taxable year ending December 31, 2006: $1,286.
(b) For the taxable year ending December 31, 2007: $1,234.
(c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Defendants’ Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely

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on the Plaintiff Dean Hara’s claim for enrollment in the FEHB Program as a matter of standing.
JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties’ concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12, 2010 [#71].

ENTERED:

/s/ JOSEPH L. TAURO JOSEPH L. TAURO United States District Judge

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APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED
STATES OF AMERICA, DEFENDANTS
Filed: July 8, 2010
MEMORANDUM

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TAURO, J.: I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff ’s Motion for Summary Judgment [#26] is ALLOWED.3
1 1 U.S.C. § 7. 2 Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.” 3 In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

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II. Background4
A. The Defense of Marriage Act
Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 6
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Ac-
4 Defendants, with limited exception, concede the accuracy of Plaintiff ’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
6 1 U.S.C. § 7.

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counting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States
State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10
In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and
7 Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO04-353R).
8 Id. at 1. 9 Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10 Id. 11 Id., ¶ 10.

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protections of the federal Constitution) for the health, safety and welfare of their populations.” 12
In large part, rules and regulations regarding marriage corresponded with local circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.” 16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of consti-
12 Id. 13 Id. 14 Id. 15 Id., ¶ 14. 16 Id. 17 Id., ¶¶ 15, 18-19. 18 Id., ¶ 19.

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tutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.” 20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.” 21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status
19 Id . 20 Id. 21 Id. 22 Id. 23 See id ., ¶¶ 20-52. 24 Id .

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determinations for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.” 29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.” 31
25 Id ., ¶ 45. 26 Defs.’ Mem. Mot. Dismiss, 27. 27 See Cott Aff., ¶¶ 36, 44. 28 Id ., ¶ 35. 29 Id. 30 Id ., ¶ 37. 31 Id.

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In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from AfricanAmerican voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39
32 Id., ¶ 36. 33 Id . 34 Id ., ¶ 38. 35 Id. 36 Id. 37 Id ., ¶ 38. 38 Id., ¶ 43. 39 In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so

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Throughout this entire period, however, the federal government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts
In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.” 43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recogni-
directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40 Cott Aff., ¶ 45. 41 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42 Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43 Compl. ¶ 17. 44 Id ., ¶¶ 18-19. 45 Nyberg Aff., ¶¶ 6-7.

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tion of these marriages, the Commonwealth contends that the statute has a significant negative impact on the operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46 Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47 Id. 48 Id., ¶ 4. 49 Id ., ¶ 4. 50 Walls Aff., ¶ 8 (citations omitted). 51 Id .

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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.” 55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
52 Id ., ¶ 5. 53 Id ., ¶ 5. 54 Id ., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department . . .”)). 55 Id ., ¶ 6. 56 38 U.S.C. § 2408(c). 57 Walls Aff., ¶ 10.

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The VA regulations require that veterans’ cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children. . . .” 58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” 60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” 61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would
58 38 C.F.R. § 39.5(a). 59 Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services ( June 18, 2004). 60 Id. 61 Walls Aff., Ex. 2, NCA Directive 3210/1 ( June 4, 2008).

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not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.” 62
On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (13), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which rec-
62 Walls Aff., ¶ 20. 63 Walls Aff., Ex. 3, Copy of Approved Application. 64 Walls Aff., ¶ 22, Ex. 4, Marriage License. 65 Walls Aff., ¶ 23. 66 Id. 67 Id., ¶ 24. 68 Id., ¶ 25.

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ognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government, Thomas Hopkins is ineligible for burial in Winchendon.70
Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the Winchendon cemetery and intends to bury the couple together.71
2. MassHealth Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74 MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately onehalf of its Medicaid expenditures76 and administration
69 Id ., ¶ 26. 70 Id ., ¶ 26. 71 Id ., ¶¶ 21, 27. 72 Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73 Id. 74 Id., ¶¶ 2, 5. 75 Id., ¶ 5. 76 Id ., ¶ 7.

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costs.77 HHS provides MassHealth with billions of dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for
77 Id., ¶ 7. 78 Id., ¶ 6. 79 Id ., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report ( June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/ reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80 Id., ¶ 8. 81 Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82 Id., ¶ 9. 83 Id., ¶ 11. 84 Id., ¶ 14.

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Medicaid when assessed as single, even though they would qualify if assessed as married.85
The Commonwealth contends that, under certain circumstances, the recognition of same-sex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible.89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the
85 Id. 86 Id ., ¶ 11. 87 Id., ¶ 11. 88 Id., ¶ 11. 89 Id., ¶ 12. 90 Id., ¶ 12.

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$43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse earning $7,000 per year is eligible for Medicaid coverage.92
After the Commonwealth began recognizing samesex marriages in 2004, MassHealth sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.” 95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability
91 Id., ¶ 12. 92 Id ., ¶ 12. 93 Id ., ¶ 15. 94 Id ., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95 Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61.

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of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.” 96 In addition, CMS stated that “because same sex couples are not spouses under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.” 97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.” 98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
96 Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21, 2008).
97 Id. 98 Id. 99 Callahan Aff., ¶ 22. 100 Id., ¶ 23.

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3. Medicare Tax
Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing samesex marriages, and December 2009.107
101 Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26 C.F.R. § 1.106-1).
102 McHugh Aff., ¶ 4. 103 Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104 Id. 105 Id. 106 Id., ¶ 7. 107 Id ., ¶ 8.

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Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion
A. Summary Judgment
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
108 Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109 Id., ¶ 10. 110 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112 This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.

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B. Standing
This court first addresses the government’s contention that the Commonwealth lacks standing to bring certain claims against the VA and HHS.113
“The irreducible constitutional minimum of standing” hinges on a claimant’s ability to establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation—a fairly traceable connection between the plaintiff ’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.” 115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a
113 The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115 Defs.’ Mem. Mot. Dismiss, 32.

103a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarlysituated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication
116 See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007).

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that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely . . . speculative.” 117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” 119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 120 The division
117 Def.’s Mem. Mot. Dismiss, 34. 118 New York v. United States, 505 U.S. 144, 156 (1992). 119 United States v. Morrison, 529 U.S. 598, 607 (2000). 120 U.S. CONST. Amend. X.

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between state and federal powers delineated by the Constitution is not merely “formalistic.” 121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” 122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.” 124
Since, in essence, “the two inquiries are mirror images of each other,” 125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or
121 New York v. United States, 505 U.S. 144, 187 (1992). 122 Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123 Id . 124 New York, 505 U.S. at 155. 125 Id. at 156.

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more of its powers enumerated in the Constitution.” 126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.” 127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” 128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdic-
126 United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)).
127 United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
128 Morrison, 529 U.S. at 607. 129 See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause). 130 529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”). 131 United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce”).

107a tional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133 It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its
132 U.S. CONST. art. I, § 8. 133 Pl.’s Reply Mem., 3.

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spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.” 137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of
134 Arlington Cent. Sch. Dist. Bd . of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
135 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136 483 U.S. 203 (1987). 137 Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).

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Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” 138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to . . . legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ ” 139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” 140
In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process
138 Dole, 483 U.S. at 210. 139 Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140 Id. (internal citation omitted).

110a Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the samesex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal funding, this
141 Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).

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court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.” 142
A. DOMA Regulates the Commonwealth “as a State”
With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam
142 106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass’n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).

112a and Winchendon should the same-sex spouse of a veteran be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.” 144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and pa-
143 The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144 Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568).

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ternity,” 145 is often held out as the archetypal area of local concern.146
The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 148
145 Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).
146 See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147 Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).

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State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard their states’ areas of sovereign concern.
The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character.
That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded

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marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” 150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” 151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sover-
149 See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
150 529 U.S. at 615 (emphasis added). 151 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted).

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eignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.” 153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of statehood.
C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions
Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA
152 Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process.
153 Defs.’ Reply Mem., 5.

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would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.” 155 And, in
154 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’ ” were “abandon[ed] . . . as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
155 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 645-52

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view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.” 156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury samesex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an applica-
(2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156 New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.

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tion for the burial of Thomas Hopkins, the same-sex partner of Darrel Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on

120a the “core of sovereignty retained by the States,” 157 because “the Constitution . . . divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff ’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge
157 New York, 505 U.S. at 159. 158 Id. at 187.

121a APPENDIX F
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: July 8, 2010
ORDER

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TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX G UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: Aug. 12, 2010
JUDGMENT

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TAURO, J.
Having allowed Plaintiffs Motion for Summary Judgment [#26], this court hereby enters the following judgment in this action:
1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX H
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

 </s> No. 12-97
IN THE
Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, Cross-Petitioner,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Cross-Respondents.
ON CONDITIONAL CROSS-PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
REPLY BRIEF FOR CONDITIONAL CROSS-PETITIONER

MARK C. FLEMING

MARTHA COAKLEY

FELICIA H. ELLSWORTH ATTORNEY GENERAL

MARGARET E. O’GRADY

MAURA T. HEALEY

WILMER CUTLER PICKERING Counsel of Record

HALE AND DORR LLP

JONATHAN B. MILLER

60 State Street

CHRISTOPHER K. BARRY-SMITH

Boston, MA 02109

JOSHUA D. JACOBSON

ASSISTANT ATTORNEYS GENERAL

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Maura.Healey@state.ma.us

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007
PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ...........................................ii INTRODUCTION ............................................................. 1 ARGUMENT ...................................................................... 2 CONCLUSION ................................................................... 7
(i)

ii TABLE OF AUTHORITIES

CASES

Page(s)

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010) ..................................................................... 6

Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315 (1935) ......................................... 5

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) .............................. 5

Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994) ............................................................. 4

United States v. American Library Ass’n, 539 U.S. 194 (2003) .............................................................. 6

United States v. Lopez, 514 U.S. 549 (1995)..................... 6

CONSTITUTIONAL PROVISIONS AND RULES
U.S. Const. art. I, § 8.............................................................. passim amend. X............................................................. passim
S. Ct. R. 25 ............................................................................ 3

The Commonwealth of Massachusetts respectfully submits this reply brief in response to the opposition of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG). The United States has not filed a brief in opposition.
INTRODUCTION
The Commonwealth filed a conditional crosspetition in order to preserve its opportunity to argue that the federal Defense of Marriage Act (DOMA) violates the Tenth Amendment and the Spending Clause in the event that the Court grants review in either No. 12-13 or No. 12-15, which raise the issue of DOMA’s constitutionality under equal protection principles. BLAG agrees that the Commonwealth can raise its Tenth Amendment and Spending Clause arguments as a respondent in No. 12-13 or No. 12-15, and that the Court could rely upon those constitutional provisions in the context of those petitions. If the Court agrees with that position, the conditional cross-petition need not be granted. If the Court disagrees, however, then the Court should grant this conditional cross-petition to ensure that the Court may consider the full scope of DOMA’s constitutional infirmity in its review.
BLAG’s opposition is remarkable for what it does not oppose. BLAG agrees that this Court could affirm the court of appeals’ judgment on the Tenth Amendment or Spending Clause grounds advanced by the Commonwealth. Opp. 11-12. BLAG also does not deny that, of the several petitions before this Court addressing the constitutionality of DOMA, only those in this case present the question whether and to what extent DOMA is a permissible exercise of federal power under the Tenth Amendment and the Spending Clause. Id. Finally, BLAG agrees that the decisions of this Court

2
uniformly treat family relations as a matter of traditional State concern not to be interfered with by the federal government (Opp. 16-17 & n.8), disputing only that DOMA is such an interference—which is of course the precise question presented by the Commonwealth.
BLAG argues that the Tenth Amendment and Spending Clause questions have not generated any division in the courts of appeals (Opp. 11-12)—an unremarkable fact given that no other State has filed a similar challenge to DOMA. That might be a relevant factor if the Commonwealth were seeking review of those issues on their own. But this is a conditional crosspetition. If the Court decides to review the equal protection issues raised by the United States and BLAG, it is only appropriate to consider every asserted ground of the statute’s invalidity. Indeed, that is precisely why respondents may typically defend the judgment below on properly-preserved grounds supported by the record. The Court should therefore consider the Tenth Amendment and Spending Clause challenges to DOMA together with the equal protection challenge. To the extent a conditional cross-petition is required to do so, it should be granted.
ARGUMENT
1. The Commonwealth agrees with BLAG that the questions presented in this conditional crosspetition can and should be addressed by this Court in connection with case No. 12-13 or No. 12-15, and that the Court need not grant this conditional cross-petition in order for those questions to be properly before the Court. If the Court is also of that view, then the Court may deny the conditional cross-petition, which is intended only to ensure that the Court has the ability to

3
reach the Commonwealth’s challenge to DOMA on Tenth Amendment and Spending Clause grounds.1
2. BLAG next argues that granting the Commonwealth’s conditional cross-petition would “needlessly complicate the briefing and argument,” particularly in light of the United States’ position that DOMA violates equal protection principles but not the Tenth Amendment or Spending Clause. Opp. 11; see also id. 13. That argument is without merit; the Court is more than capable of managing whatever “complexity” BLAG fears will ensue if the cross-petition is granted. The Court’s Rules establish a briefing schedule and sequence for cases involving cross-petitions and also permit the Clerk to alter the schedule as appropriate in a particular case. S. Ct. R. 25. The grant of a single cross-petition is no more complex than any of the other cases involving multiple parties, issues, and positions that the Court regularly considers on the merits.
BLAG’s argument that the United States’ “awkward posture” (Opp. 12) counsels denial of the crosspetition is likewise puzzling, particularly in light of the fact that BLAG agrees that the Commonwealth’s Tenth Amendment and Spending Clause claims may be raised as alternative grounds for affirmance in No. 12-13 or No. 12-15. It is far from clear how the United States’ posture will be any different if the same issues are raised in a conditional cross-petition; presumably the
1 Of course, BLAG’s agreement that the Commonwealth can raise these arguments as a respondent in No. 12-13 or No. 12-15 does not make the conditional cross-petition “superfluous.” Opp. 19. It is the view of the Court, not of BLAG, that will determine whether the conditional cross-petition is necessary for full consideration of the Commonwealth’s arguments.

4
United States is in the same position as it was before the court of appeals, which was able to address the issues without “diverting attention” from other questions. Id. 20. Indeed, the United States has declined to oppose the conditional cross-petition.
3. BLAG devotes the majority of its brief to disparaging the merits of the Commonwealth’s Tenth Amendment and Spending Clause arguments. This is a curious development, as BLAG did not take any position on those issues before the court of appeals. BLAG intervened solely for the purpose of defending DOMA on equal protection grounds and made no argument before the court of appeals on the Commonwealth’s federalism-based claims.
Even had they been developed and considered below, BLAG’s merits arguments are not a basis for denying this cross-petition. The question is not whether the issues raised independently merit certiorari, though a sovereign State’s challenge to a federal law on the grounds that the statute violates the Tenth Amendment and the Spending Clause surely would merit this Court’s attention. Again, however, this cross-petition is conditional, to be granted only if the Court decides to review the equal protection issues raised in No. 12-13 or No. 12-15. If the Court decides to review DOMA’s constitutionality, it is logical that it also review every constitutional challenge presented in this case.2
2 It is for this reason that respondents are permitted to raise alternative arguments as bases for affirmance of the judgment below. See, e.g., Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994) (“A prevailing party need not cross-petition to defend a judgment on any ground properly raised below[.]”). This

5
Nor are BLAG’s merits arguments well-founded. DOMA’s unprecedented federal definition of marriage encroaches on the Commonwealth’s regulation of marriage, overriding the State’s determinations of marital status for purposes of federal programs implemented jointly by the Commonwealth and the federal government, and effectively dividing marriage in the Commonwealth into two different statuses: married for all purposes for different-sex spouses, and married but “federally single” for same-sex spouses. Cross-Pet. 3. BLAG is simply wrong when it states that “DOMA manifestly does not preempt state law” and “preserves each sovereign’s ability to define marriage for its own purposes.” Opp. 17. To the contrary, DOMA interferes with State marital determinations and conditions federal funding on the adoption of its definition. This is an across-the-board incursion wholly different from any other statute cited by BLAG. See id. 4 n.3.
BLAG argues that the Commonwealth has “not even identified any case that supports” its Tenth Amendment claim (Opp. 18), but then conspicuously fails to discuss any of the Tenth Amendment precedent on which the Commonwealth relies. See Cross-Pet. 1819. If there is a paucity of Tenth Amendment precedent addressing DOMA’s precise constitutional infirmity, that is only further evidence that Congress has never before chosen to intervene in a “domain of activity set apart by the Constitution as the province of the states” in such a broad and sweeping fashion. Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 338 (1935) (Cardozo, J.); cf. National Fed’n of Indep. Bus. v.
conditional cross-petition is presented only in the event that the Court concludes that route is somehow insufficient in the particular context of this case.

6
Sebelius, 132 S. Ct. 2566, 2586 (2012) (opinion of Roberts, C.J.) (“[S]ometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s action. At the very least, we should ‘pause to consider the implications’ … when confronted with such new conceptions of federal power.” (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010), and United States v. Lopez, 514 U.S. 549, 564 (1995) (second and third alterations in original))).
BLAG does not disagree with the Commonwealth’s principal Spending Clause theory—that if DOMA violates equal protection principles it necessarily violates the Spending Clause because it requires the Commonwealth to violate the constitution as a condition of its receipt of federal funds. Opp. 19. Nor does BLAG deny that the court of appeals, having found an equal protection violation, should therefore have found a Spending Clause violation as well. See Cross-Pet. 17. Instead, BLAG contends that the Spending Clause argument is “superfluous” because it depends on this Court first finding an underlying equal protection violation and thus “would add nothing to the analysis.” Opp. 19. That this Court must make a predicate finding of illegality before holding that DOMA violates the Spending Clause is no reason to avoid the question. Indeed, this Court’s Spending Clause doctrine—which establishes that “Congress may not induce the recipient to engage in activities that would themselves be unconstitutional,” United States v. American Library Ass’n, 539 U.S. 194, 203 (2003) (internal quotation marks omitted)—envisions precisely such a two-tiered inquiry.
As for the Commonwealth’s claim that DOMA violates the Spending Clause because it imposes conditions

7
unrelated to the federal interests supposedly advanced by the programs at issue, BLAG contends only that consideration of this claim would divert the Court’s attention from the equal protection question because it would require this Court to consider “program-specific arguments.” Opp. 20. That argument is specious; the Commonwealth’s Spending Clause challenge addresses only two specific programs—Medicaid and the State Cemetery Grants Program—and neither the United States nor BLAG has provided any “program-specific argument[]” explaining how a refusal to acknowledge marriages that are valid under Massachusetts law is germane to either program. On the contrary, the United States argued below that the germaneness requirement simply does not apply to a provision like Section 3 of DOMA. See Pet. App. 17a. That is an “across-theboard” argument (id.) that the Court can consider as readily as the other constitutional arguments presented in this case.
CONCLUSION
If the Court grants certiorari in either No. 12-13 or No. 12-15, it should grant the conditional cross-petition to the extent necessary to reach the Commonwealth’s Tenth Amendment and Spending Clause claims.

Respectfully submitted.

MARK C. FLEMING FELICIA H. ELLSWORTH MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109
ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007

MARTHA COAKLEY ATTORNEY GENERAL MAURA T. HEALEY
Counsel of Record JONATHAN B. MILLER CHRISTOPHER K. BARRY-SMITH JOSHUA D. JACOBSON ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

SEPTEMBER 2012

 </s> No. 12-97

In the Supreme Court of the United States
________________
COMMONWEALTH OF MASSACHUSETTS, Cross-Petitioner,
v. UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ET AL., and
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________ On Cross-Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit ________________

BRIE_F__I_N___O_P__P__O_S__I_TION

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

CHRISTINE DAVENPORT BANCROFT PLLC

Senior Assistant Counsel 1919 M Street, N.W.

TODD B. TATELMAN

Suite 470

MARY BETH WALKER

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Respondent

QUESTIONS PRESENTED
(1) Does the Tenth Amendment to the Constitution prohibit Congress from defining the words “marriage” and “spouse” when it uses them in federal law, and instead require that each state define what federal law means by these words within the state’s borders?
(2) Does Congress’ constitutional power to spend “for the general welfare” prohibit Congress from defining the beneficiaries of federally-funded and state-administered programs, if a state believes that including additional beneficiaries would also promote the general welfare?

ii
PARTIES TO THE PROCEEDING
The Bipartisan Legal Advisory Group of the U.S. House of Representatives (“the House”) was the Intervenor-Appellant in the court below and is the Petitioner in No. 12-13 and a Respondent in No. 1215.1
The U.S. Department of Health and Human Services, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, the U.S. Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as Secretary of the U.S. Department of Veterans Affairs, and the United States of America were
1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

iii
Appellants in the court below and are Respondents in No. 12-13 and Petitioners in No. 12-15.
The Office of Personnel Management, the U.S. Postal Service, Patrick R. Donahoe, in his official capacity as Postmaster General of the United States, Michael J. Astrue, in his official capacity as Commissioner of the Social Security Administration, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, and the United States of America were Appellants/CrossAppellees in the court below and are Respondents in No. 12-13 and Petitioners in No. 12-15.
Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Dorene Bowe-Shulman, Mary Bowe-Shulman, and the Commonwealth of Massachusetts were Appellees in the court below and are Respondents in Nos. 1213 and 12-15.
Dean Hara was an Appellee/Cross-Appellant in the court below and is a Respondent in Nos. 12-13 and 12-15.

iv
TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ...................................... v INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 2 I. The Defense of Marriage Act ............................... 2 II. The Justice Department’s About-Face
and the House’s Intervention ............................. 5 III. History of this Case............................................. 6
1. The District Court’s Opinions ...................... 7
2. First Circuit Proceedings and Opinion ........ 9
IV. Other Petitions Involving DOMA..................... 10 REASONS FOR DENYING THE WRIT ................. 11 I. Granting the Conditional Cross-Petition
Would Be Superfluous and Would Needlessly Complicate the Briefing and Argument........................................................... 12 II. The Questions Presented by Massachusetts Are Neither Difficult Nor Independently Worthy of This Court’s Extended Consideration ................................... 14 1. Tenth Amendment Argument ..................... 15
2. Spending-Power Argument ........................ 19
CONCLUSION ......................................................... 21

v

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982) ....................... 5

Ankenbrandt v. Richards, 504 U.S. 689 (1992) .............................................. 17

Bell v. Tug Shrike, 332 F.2d 330 (4th Cir. 1964) ................................ 16

Bowen v. Gilliard, 483 U.S. 587 (1987) .............................................. 15

Dandridge v. Williams, 397 U.S. 471 (1970) .............................................. 13

De Sylva v. Ballentine, 351 U.S. 570 (1956) .............................................. 16

Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)........................................ 5

Elk Grove Unified Sch. Dist v. Newdow, 542 U.S. 1 (2004) .................................................. 17

Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) .................. 11

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ................................. 6

Haddock v. Haddock, 201 U.S. 562 (1906) .............................................. 17

Helvering v. Davis, 301 U.S. 619 (1937) .............................................. 15

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) .............................................. 16

vi
Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005) ................... 5
Jones v. United States, 527 U.S. 373 (1999) .............................................. 12
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............... 5
McCarty v. McCarty, 453 U.S. 210 (1981) .............................................. 16
Nw. Airlines, Inc. v. Cnty. of Kent, 510 U.S. 355 (1994) .............................................. 13
Pedersen v. United States, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012)....................................... 11
Schiro v. Farley, 510 U.S. 222 (1994) .............................................. 12
Slessinger v. Sec’y of HHS, 835 F.2d 937 (1st Cir. 1987) ................................. 16
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) ........................... 5
South Dakota v. Dole, 438 U.S. 203 (1987) ................................................ 8
Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) ................. 5
Tidewater Marine Towing, Inc. v. Curran-Houston, Inc., 785 F.2d 1317 (5th Cir. 1986) .............................. 16
United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) ................................. 8

vii
United States v. Lopez, 514 U.S. 549 (1995) .............................................. 17
United States v. N.Y. Tel. Co., 434 U.S. 159 (1977) .............................................. 13
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................. 5
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) ................... 11
Statutes 1 U.S.C. § 7 ................................................................. 2 5 U.S.C. § 8101 ........................................................... 4 5 U.S.C. § 8341(a)....................................................... 4 I.R.C. § 2(b)(2) ............................................................ 4 I.R.C. § 7703(b)........................................................... 4 38 U.S.C. § 101(31)..................................................... 4 42 U.S.C. § 416 ........................................................... 4 42 U.S.C. § 1382c(d)(2)............................................... 4 Revenue Act of 1921, 42 Stat. 22............................... 4 Regulations & Rules 38 C.F.R. § 39.10(a) .................................................... 7 U.S. Dep’t of Labor, Final Rule, Family
Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ................................................ 4 Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993)..................... ii Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)..................... ii Other Authorities 142 Cong. Rec. 17093 (1996)...................................... 2

viii
142 Cong. Rec. 22467 (1996)...................................... 2
Corr. Br. for the U.S. Dep’t of HHS, et al., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207 & 10-2214 (1st Cir. Jan. 20, 2011) ........................................... 9
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996)................................ 3
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ................................................. 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996)................................ 3
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html ................................... 5, 6
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ......................................... 3

ix
Superseding Br. for the U.S. Dep’t of HHS, et al., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207 & 10-2214 (1st Cir. Sept. 23, 2011)...................................... 6, 9

INTRODUCTION
The House respectfully opposes the Conditional Cross-Petition for a Writ of Certiorari filed by Massachusetts. As Massachusetts itself correctly recognizes, the conditional cross-petition is not necessary. If the House’s primary petition is granted, Massachusetts will be able to invoke both of the issues it seeks to raise in its cross-petition as alternative bases for affirmance of the judgment below. Thus, granting the conditional cross-petition will simply complicate the briefing and scheduling of this case on the merits without materially assisting the Court.
Moreover, the arguments Massachusetts raises in its conditional cross-petition are weak and do not merit separate focus or distinct briefing. The notion that the Tenth Amendment or limits on the spending power disable Congress from defining terms like “marriage” and “spouse” when they are used for purposes of federal law is meritless, especially when the federal government defines them in exactly the same way that every state did until only eight years ago, and that the majority of the states still do. No appellate court has adopted this novel theory. Indeed, both the First Circuit and the Department of Justice (“the Department”) recognized the lack of merit of these claims, despite believing that DOMA is unconstitutional on the grounds raised by the House’s Petition. Indeed, the Department continues to defend DOMA against non-equal-protection claims, a posture which would only further complicate briefing and argument before this Court were the cross-petition granted. The House opposes the admittedly superfluous cross-petition because

2
these unmeritorious theories are better suited for treatment as alternative grounds to support the judgment below.
Accordingly, the Court should grant the House’s petition in No. 12-13, and deny the instant conditional cross-petition as unnecessary.
STATEMENT OF THE CASE
I. The Defense of Marriage Act
The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses of Congress and signed into law by President Clinton.” App. 3a.2 The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate).
Section 3 of the Act defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. These definitions apply for purposes of federal law only. DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage. DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the Department’s opinion on the bill’s constitutionality, and the Department three times
2 Citations to “App.” are to the Appendix to the House’s petition for certiorari in Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill, No. 12-13.

3
reassured Congress by letter that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 2 (1996) (“Senate Hrg.”). Congress also received and considered other expert advice on DOMA’s constitutionality and concluded that DOMA is constitutional. E.g., House Rep. 33 (DOMA “plainly constitutional”); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 87117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell).
Congress, of course, did not invent the meanings of the words “marriage” and “spouse” when it enacted DOMA in 1996. Instead, Congress acted to ensure that Hawaii’s novel decision to take steps toward redefining marriage did not automatically dictate the definition in other jurisdictions. Thus, Section 2 of DOMA allowed each state to decide whether to retain the traditional definition without having another jurisdiction’s decision imposed via full faith and credit principles, and Section 3 preserved the federal government’s ability to retain the traditional definition for federal law purposes. Moreover, pre-

4
1996 Congresses decidedly did not regard themselves as powerless to say what these words mean when they appear in federal law. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s statelaw marital status, it also has a long history of supplying federal marital definitions in various contexts—definitions that always have been controlling for purposes of federal law, without regard to the couple’s status under state law.3 Indeed, in clarifying the meanings of “marriage” and “spouse” in federal law by enacting DOMA, Congress merely reaffirmed what it has always meant when using those words in federal law—and what courts and the Executive Branch have always understood it to mean: A traditional male-female couple.4
3 E.g., I.R.C. § 2(b)(2) (deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); I.R.C. § 7703(b) (excluding some couples “living apart” from federal marriage definition for tax purposes); 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “‘spouse’ means a person of the opposite sex”); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for socialsecurity purposes); 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A)-(a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 1186a(b)(1) (anti-fraud criteria regarding marriage in immigration law context).
4 E.g., Revenue Act of 1921, § 223(b)(3), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return); 38 U.S.C. § 101(31) (“‘[S]pouse’ means a person of the opposite sex ….”); U.S. Dep’t of Labor, Final Rule, Family Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included

5
II. The Justice Department’s About-Face and the House’s Intervention
After DOMA’s enactment, discharging the Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, the Department of Justice during the Bush Administration successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.5 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Attorney General abruptly notified Congress that the Department had decided “to forgo the defense” of DOMA. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag223.html. Attorney General Holder stated that he and President Obama were of the view “that a
“same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes.”), aff’d, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting a District of Columbia marriage statute, intended “that ‘marriage’ is limited to opposite-sex couples”).
5 See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

6
heightened standard [of review] should apply [to DOMA]” under equal protection principles, “that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id. In response the House sought and received leave to intervene as a party-defendant in the various cases nationwide involving equalprotection challenges to DOMA’s constitutionality. The Department, however, has continued to defend DOMA against claims of unconstitutionality on Tenth-Amendment or spending-power grounds. E.g., Superseding Br. for the U.S. Dep’t of HHS, et al. at 55-61, Massachusetts v. U.S. Dep’t of HHS, Nos. 102204, 10-2207 & 10-2214 (1st Cir. Sept. 23, 2011).
III. History of this Case
In 2003, Massachusetts’ Supreme Judicial Court concluded that the Commonwealth’s constitution requires it to extend marriage licenses to same-sex couples. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). In 2009, Massachusetts filed this suit in the United States District Court for the District of Massachusetts, claiming that the federal government was also required to recognize such relationships as marriages under federal law. Massachusetts identified two areas in which it has chosen to administer federal funds or programs but does not wish to abide by the federal definition of marriage. First, with respect to its Medicaid program, Massachusetts wishes to combine the incomes of same-sex couples who are married under state law and have obtained marriage licenses, in order to render them ineligible for the program, without suffering a loss in federal funds. It also seeks federal matching funds for individuals in

7
same-sex marriages recognized by Massachusetts who do not qualify for assistance under federal law, but would if they were able to take advantage of the higher eligibility threshold for married couples.6 Second, Massachusetts wishes to bury the same-sex partners of military veterans who are married under Massachusetts law in state-administered but federally-funded veterans’ cemeteries, which with few exceptions are reserved under federal law for veterans and their spouses. 38 C.F.R. § 39.10(a).
The case was assigned to the same district judge who was also presiding over Gill v. OPM, a case involving an equal-protection challenge to DOMA by a number of same-sex couples. The two cases were consolidated for purposes of appeal, and the House’s petition for certiorari in No. 12-13 covers both cases.
1. The District Court’s Opinions
The district court granted summary judgment in favor of Massachusetts, concurrently granting summary judgment to the individual plaintiffs in Gill in a separate opinion. As to Massachusetts’ claims, the district court first concluded that Massachusetts’ alleged risk of losing federal funding was immediate and concrete enough to confer standing, even though the federal agencies in question had not actually moved to strip any federal funding. App. 99a-101a.
On the merits of Massachusetts’ claims, the district court noted that Congress may not require states to
6 These primarily are individuals whose income is above the eligibility threshold for a single person, but then obtain a marriage certificate in Massachusetts with a person of the same sex whose income is significantly lower. See App. 94a.

8
engage in unconstitutional acts as a condition of receiving federal funding. App. 106a (citing South Dakota v. Dole, 438 U.S. 203, 210 (1987)). The court noted its holding in Gill that “DOMA violates * * * equal protection,” and found it “equally applicable in this case.” App. 107a. It therefore concluded that DOMA is not a valid exercise of the spending power. Having reached that conclusion, the district court found it unnecessary to consider Massachusetts’ additional argument that DOMA is not germane “to the specific purposes of Medicaid or the State Cemetery Grants Program.” App. 108a.
The district court then invoked the First Circuit’s holding in United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997), that a federal statute violates the Tenth Amendment if it (1) “regulate[s] the States as States,” (2) “concern[s] attributes of state sovereignty” and (3) “compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.” App. 109a. The district court concluded that “DOMA [r]egulates the Commonwealth ‘as a State’” because it “impact[s] * * * the state’s bottom line” by threatening lower levels of federal funding. Id. It also stated that Congress historically has often deferred on questions of marital status to the states, and so “the authority to regulate marital status is a sovereign attribute of statehood.” App. 114a. The district court also found that DOMA interferes with Massachusetts’ traditional governmental functions, because it contains funding conditions that are inconsistent with Massachusetts law. App. 116a-117a.

9
2. First Circuit Proceedings and Opinion
The Executive-Branch defendants filed a notice of appeal to the Court of Appeals for the First Circuit, where the Gill and Massachusetts appeals were consolidated. Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Nov. 24, 2010). The Department initially filed a brief defending DOMA against all constitutional claims. Corr. Br. for the U.S. Dep’t of HHS, et al., id. (1st Cir. Jan. 20, 2011). Shortly thereafter, however, the Department announced its conclusion that DOMA violated equal protection principles. After the House requested and received leave to intervene, the Court denied the Department’s motion to withdraw its earlier brief defending DOMA, but allowed the Department to file a superseding brief, which argued that DOMA violated equal protection principles, but continued to maintain that DOMA does not violate the Tenth Amendment and is a valid exercise of the spending power. Superseding Br. for U.S. Dep’t of HHS et al., id. (1st Cir. Sept. 23, 2011).
The First Circuit held that “neither the Tenth Amendment nor the Spending Clause invalidates DOMA.” App. 15a. It recognized that DOMA is broader than previous definitions of the word “marriage” that Congress has enacted, but noted that
Congress surely has an interest in who counts as married. The statutes and programs that [DOMA] governs are federal regimes * * * and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth

10
Amendment or Spending Clause require it to do so.
App. 16a. The panel observed that this Court’s modern precedents in this area invalidate “[federal] statutes only where Congress [has] sought to commandeer state governments or otherwise directly dictate the internal operations of state government,” but that DOMA “governs only federal programs and funding, and does not share these two vices of commandeering or direct command.” App. 16a-17a. Likewise, the Court noted that “the ‘germaneness’ requirement that conditions on federal funds must be related to federal purposes * * * is not implicated where, as here, Congress merely defines the terms of the federal benefit. * * * DOMA merely limits the use of federal funds to prescribed purposes.” App. 17a.
The First Circuit thus rejected Massachusetts’ claims. Nevertheless, although the panel disagreed with the district court’s reasoning, it held that DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause.
IV. Other Petitions Involving DOMA
The question of DOMA’s constitutionality is also presented by five other petitions for certiorari pending before this Court. Two other petitions arise out of the First Circuit’s decision and judgment in this case. The others are petitions for certiorari before judgment following appeals of district court decisions striking down DOMA on equal protection grounds.
Massachusetts’ instant petition is conditioned on the Court’s grant of the House’s petition for

11
certiorari in No. 12-13, or the Department’s in No. 12-15, both of which seek review of the First Circuit’s judgment in the consolidated appeals. The Department also has sought certiorari before judgment in the court of appeals in Golinski v. OPM, No. 12-16, following a decision of the Northern District of California striking down DOMA on equal protection grounds. See 824 F. Supp. 2d 968 (N.D. Cal. 2012). Another petition for certiorari before judgment has been filed by the private plaintiff in Windsor v. United States, No. 12-63, following a judgment of the Southern District of New York striking down DOMA under equal protection. See 833 F. Supp. 2d 394 (S.D.N.Y. 2012). Another group of private plaintiffs has filed a similar petition for certiorari before judgment in Pedersen v. United States, No. 12-231, following a judgment of the District of Connecticut striking down DOMA under equal protection. No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012).
REASONS FOR DENYING THE WRIT
As Massachusetts itself recognizes, if the Court grants the House’s petition in Gill, Massachusetts will be a respondent and can, and undoubtedly will, raise its Tenth Amendment and spending power arguments as alternative reasons for affirming the judgment below regardless of whether its conditional cross-petition is granted. Granting the conditional cross-petition thus would only needlessly complicate the briefing and argument and increase the focus on these two arguments.
That is undesirable for at least two reasons. First, Massachusetts’ Tenth Amendment and spending power arguments are insubstantial and have not

12

generated any confusion or even much discussion

among the courts of appeals. The notion that the

federal government cannot adopt its own definitions

for purposes of its own federal programs, but must

adopt for federal-law purposes whatever definitions

the states favor, would turn the Supremacy Clause

on its head. There is no need to give greater

credence or briefing space to these contentions by

granting a concededly unnecessary cross-petition,

especially where the Department’s awkward posture

of defending DOMA against some claims but not

others would further complicate matters. Second,

while Massachusetts’ Tenth Amendment and

spending power claims are meritless as to all federal

programs, Massachusetts’ “germaneness” attack on

DOMA would logically apply differently to different

federal programs. This is in contrast to equal

protection attacks on DOMA, which view DOMA’s

across-the-board application as part and parcel of its

constitutional problem.

Greater focus on

Massachusetts’ spending power challenge thus risks

distracting the parties from the broader equal

protection issues that all parties agree merit this

Court’s review.

I. Granting the Conditional Cross-Petition Would Be Superfluous and Would Needlessly Complicate the Briefing and Argument.

It is well-established that “the State, as respondent” in a case where it prevailed in the lower courts, “is entitled to rely on any legal argument in support of the judgment below.” Schiro v. Farley, 510 U.S. 222, 228-229 (1994); see also, e.g., Jones v. United States, 527 U.S. 373, 397 (1999); United

13

States v. N.Y. Tel. Co., 434 U.S. 159, 166 n.8 (1977); Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970). Whether or not the Court grants Massachusetts’ conditional cross-petition, Massachusetts is a respondent for purposes of the House’s petition in No. 12-13 (and the Department’s petition in No. 1215). As Massachusetts accurately observes, having argued for DOMA’s invalidity below and received a judgment to that effect, albeit on grounds the Commonwealth did not advance, its “separate grounds for affirmance could be fully considered without need for a conditional cross-petition,” CrossPet. 9, because “[a] prevailing party need not crosspetition * * * so long as that party seeks to preserve, and not to change, the judgment.” Id. (quoting Nw. Airlines, Inc. v. Cnty. of Kent, 510 U.S. 355, 364 (1994)).

Therefore, Massachusetts’ “concern[] that

petitioners * * * might interpret the court of appeals’

judgment as something other than an affirmance in

the Commonwealth’s favor,” Cross-Pet. 10, is

misplaced.

Massachusetts could raise the

arguments presented in the conditional cross-

petition as a respondent in Gill. Granting the

conditional cross-petition thus would only clutter

this Court’s docket and complicate the briefing and

argument of the case on the merits. What is more,

the Department continues to defend DOMA against

Tenth Amendment and spending power challenges,

while joining the attack on equal protection grounds.

Granting the conditional cross-petition could

needlessly confuse the briefing and argument of this

important case on the merits.

14
II. The Questions Presented by Massachusetts Are Neither Difficult Nor Independently Worthy of This Court’s Extended Consideration.
Since Massachusetts will clearly be able to raise its Tenth Amendment and spending power arguments whether or not its conditional cross-petition is granted, the relevant question is whether these arguments merit separate briefing and extended focus by this Court. Clearly they do not. Massachusetts’ arguments are novel, meritless and antithetical to our basic constitutional design, which grants the federal and state governments separate sovereignty and makes each superior in its own realm except where the Supremacy Clause gives the federal government the upper hand. Unlike the issues raised by the First Circuit’s ruling that DOMA is unconstitutional and presented in the House’s Gill petition, the additional arguments raised by Massachusetts and rejected by the court below do not remotely satisfy the criteria for plenary review or justify this Court’s extended consideration. Equally important, granting the conditional crosspetition risks distracting attention from the equal protection issues that clearly warrant this Court’s review.
As the House has explained in its Gill petition, the First Circuit’s decision striking down DOMA is a prototypical candidate for this Court’s review, because the court of appeals invalidated an important federal statute on novel grounds, in conflict with this Court’s precedents and with decisions of the other courts of appeals, and regarding a topic that is the subject of great national

15
controversy. Those considerations apply to the First Circuit’s equal protection ruling. They do not, however, apply to Massachusetts’ Tenth Amendment and spending power arguments.
1. Tenth Amendment Argument
This Court has long made clear that Congress has ample authority to define the scope of and eligibility for federal benefits. E.g., Bowen v. Gilliard, 483 U.S. 587, 598 (1987) (noting “Congress’ plenary power to define the scope and the duration of the entitlement to * * * benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients’ needs and the resources available to fund the program” (quotation marks omitted; ellipsis in original)); Helvering v. Davis, 301 U.S. 619, 645 (1937) (“When money is spent to promote the general welfare, the concept of welfare * * * is shaped by Congress, not the states.”). Massachusetts identifies no decision of this Court or any other even intimating the Commonwealth’s proposed limitation on Congress’ well-established ability to define terms in federal law. Nor does Massachusetts identify any court of appeals decision that has ever even discussed such an idea, let alone an actual conflict among the lower courts.
Instead, the cases cited by Massachusetts all stand at most for the unremarkable proposition that, where federal law requires reference to marital status or some other concept of domestic relations and does not specifically define the applicable terms, then reference to state law may be appropriate. See

16
Cross-Pet. 13 n.7.7 But Congress also may legitimately pursue a policy of “uniformity” in federal definitions of family relationships, “rather than * * * the diversity which would flow from incorporating * * * the laws of [the several] States.” De Sylva, 351 U.S. at 583 (Douglas, J., concurring). When it comes to federal programs, the choice between adopting state-law concepts or adopting a uniform federal rule is for Congress. To be sure, this Court has suggested limits on Congress’ ability to preempt state law by setting up a federal system of issuing marriage licenses, divorce decrees, and childcustody or paternity determinations. See Cross-Pet. at 12 (citing McCarty v. McCarty, 453 U.S. 210, 220 (1981) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (“[S]tate family and family-property
7 Citing Slessinger v. Sec’y of HHS, 835 F.2d 937, 939 (1st Cir. 1987) (declining to create federal common law of divorce for purposes of “mother’s benefits” where “[n]either the Act nor the Secretary’s regulations specify to what law the Secretary should refer in determining whether a divorce decree has validly terminated a marriage for purposes of [the statute]”); Tidewater Marine Towing, Inc. v. Curran-Houston, Inc., 785 F.2d 1317, 1318-20 (5th Cir. 1986) (federal maritime common law incorporates state determinations of marital status, where analogous federal statutes did not define the term “wife”); Bell v. Tug Shrike, 332 F.2d 330, 334-336 (4th Cir. 1964) (similar). To similar effect is De Sylva v. Ballentine, relied upon by the district court. App. 64a & n.122. See De Sylva, 351 U.S. 570, 580 (1956) (“it is apparent that * * * the general scheme of the [federal] statute” incorporates state-law family status determinations).
Even when federal law does not define a family-status term it uses, this Court has clarified that it adopts state law determinations only “to the extent that [they] are permissible variations in the ordinary concept” of the term. Id. at 581.

17
law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.”) (citation omitted)); Haddock v. Haddock, 201 U.S. 562, 575 (1906)).8 But DOMA manifestly does not preempt state law. To the contrary, DOMA preserves each sovereign’s ability to define marriage for its own purposes. Section 2 of DOMA ensures that one state’s decision to adopt a novel definition of marriage—such as appeared to be imminent in Hawaii—would not dictate the definition in other states pursuant to full faith and credit principles. Section 3, likewise, preserved the ability of the federal government to define marriage but only for federal law purposes. No issue of preemption arises under DOMA.
The theory Massachusetts proposes is far more radical than anything ever suggested by this Court: That even when Congress has specifically defined family-relationship terms for purposes of federal law, the Tenth Amendment provides that state law will “reverse preempt” the federal definition. Not only has Massachusetts not identified any decision (other than the now-reversed district court decision below) that struck down a federal law on this basis,
8 Other cases relied upon by the district court below likewise reflect this principle. See App. 63a-65a nn.119-120, 124 (citing Elk Grove Unified Sch. Dist v. Newdow, 542 U.S. 1, 12 (2004) (federal courts do not interfere in state-law determinations of family status); Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring in the judgment) (similar); United States v. Lopez, 514 U.S. 549, 580-583 (1995) (Kennedy, J., concurring) (noting constitutional concern regarding “[t]he tendency of [a federal] statute to displace state regulation in areas of traditional state concern”) (emphasis added)).

18
it has not even identified any case that supports such a novel theory.
Massachusetts attempts to excuse this failure by arguing that DOMA is “unprecedented” in federal law. Cross-Pet. 12-13. But Massachusetts’ exaggerated and unsupported claim that “prior to DOMA, Congress had never refused to recognize a State determination of marital status,” id. at 12, is refuted by the Commonwealth’s agreement with the First Circuit’s conclusion—that Congress has an “interest in who counts as married” and has in fact defined marriage for purposes of a number of federal statutes. See id. at 14 n.8 (quotation marks omitted). In fact, Congress has supplied definitions of the word “marriage” in federal statutes for a century. See supra pp. 3-4 & nn.3-4.
Massachusetts attempts to distinguish such historical precedents by suggesting that Congress may define what it means by the term marriage only “in individual situations” and only if “every marriage can at least potentially satisfy” the definition. Cross-Pet. 14 n.8. But such a line is neither judicially administrable nor somehow lurking in the penumbras of the Tenth Amendment. The simple reality is that when the federal government defines terms for federal law purposes only the Tenth Amendment is not even implicated. In all events, Massachusetts remains free to raise its Tenth Amendment argument as an alternative ground to support the judgment below. For present purposes it is sufficient to recognize that this novel theory is not independently worthy of plenary review and is best treated as an alternative ground available for

19
Massachusetts as opposed to a basis for separate briefing and extended focus by this Court.
2. Spending-Power Argument
The spending-power issue presented by Massachusetts fares no better. Once again, no appellate court has ever adopted Massachusetts’ theory or even intimated that it might be correct. Worse still, the spending power argument is at best superfluous and at worst threatens to complicate the proceedings.
The Commonwealth notes that Congress cannot require states to violate the Constitution as a condition of receiving federal funds, and it asserts that if DOMA violates equal protection, it therefore exceeds the spending power as well for that reason. Cross-Pet. 17-18. If the Commonwealth were correct it would only underscore that its spending power argument is dependent on the equal protection issues squarely presented in the House’s petition and thus superfluous. DOMA’s constitutionality would turn on whether it comports with equal protection, and the spending-power issue would add nothing to the analysis.
Massachusetts also suggests that DOMA fails the germaneness prong of this Court’s spending power precedents. That argument is meritless as the First Circuit correctly concluded. App. 17a. Moreover, if the Court were to give extended consideration to that argument it would threaten to divert attention to program-specific arguments that are largely irrelevant for purposes of the equal protection arguments against DOMA. As the district court correctly recognized, Massachusetts’ germaneness

20
claim raises the question of whether DOMA’s definition of marriage is sufficiently related to “the specific purposes” of each individual federal program invoked by the Commonwealth. App. 108a. Thus, the spending power issue would require a programby-program analysis. The equal protection issues raised in the House’s petition, by contrast, implicate the full range of DOMA’s applications. Indeed, challengers have assailed DOMA’s across-the-board application as part and parcel of its equal protection difficulty. Extended consideration of the spending power issues thus risks diverting attention toward program-specific arguments and away from the broadly applicable equal protection arguments that merit this Court’s plenary review.
* * *
Massachusetts’ Tenth Amendment and spending power arguments are novel, weak and in deep tension with our basic constitutional design. The First Circuit’s correct rejection of these claims does not remotely satisfy this Court’s criteria for plenary review. There is thus no reason to grant Massachusetts’ conditional cross-petition or to give these issues separate briefing or extended treatment. Whether or not the conditional crosspetition is granted, Massachusetts remains a respondent to the House’s petition in No. 12-13 and remains free to raise these issues as alternative grounds for affirmance. Thus, granting the crosspetition will only needlessly complicate the briefing and argument of this case and distract from the serious equal protection issue raised by the House’s petition.

21
CONCLUSION For the foregoing reasons, Massachusetts’ conditional cross-petition, No. 12-97, should be denied. The House’s petition, No. 12-13, should be granted.

22
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent The Bipartisan Legal Advisory Group of the U.S. House of Representatives
August 23, 2012

 </s> No. 12-
IN THE
Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, Cross-Petitioner,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Cross-Respondents.
ON CONDITIONAL CROSS-PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937 7294
PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663 6534

QUESTIONS PRESENTED 1. Whether Section 3 of the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7), violates the Tenth Amendment. 2. Whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.
(i)

PARTIES TO THE PROCEEDINGS
The Commonwealth of Massachusetts was the plaintiff in the district court and an appellee in the court of appeals and is a respondent and conditional cross-petitioner in this Court.
The U.S. Department of Health and Human Services; Kathleen Sebelius, in her official capacity as the Secretary of the U.S. Department of Health and Human Services; the U.S. Department of Veterans Affairs; Eric K. Shinseki, in his official capacity as the Secretary of the U.S. Department of Veterans Affairs; and the United States (collectively, the United States) were defendants in the district court and appellants in the court of appeals and are petitioners (No. 12-15) and conditional cross-respondents in this Court.
In the companion case of Gill v. Office of Personnel Management, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary BoweShulman, and Dorene Bowe-Shulman were plaintiffs in the district court and appellees in the consolidated court of appeals proceeding and are respondents in this Court. Dean Hara was a plaintiff in the district court and was both appellee and cross-appellant in the consolidated court of appeals proceeding.
In Gill, the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, in his official capacity as the Postmaster General of the United States; Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration; Hillary Rodham Clinton, in her official capacity as
(ii)

United States Secretary of State; Eric H. Holder, Jr., in his official capacity as the Attorney General of the United States; and the United States were defendants in the district court and appellants in the consolidated court of appeals proceeding and are petitioners (No. 1215) in this Court.
The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) intervened as an appellant in the consolidated court of appeals proceeding and is a petitioner (No. 12-13) and conditional cross-respondent in this Court.
(iii)

TABLE OF CONTENTS Page
QUESTIONS PRESENTED ............................................i PARTIES TO THE PROCEEDINGS ............................ii TABLE OF AUTHORITIES ........................................ vii OPINIONS BELOW .......................................................... 1 JURISDICTION................................................................. 1 CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...................................... 2 STATEMENT ..................................................................... 2
A. Introduction ........................................................... 2 B. District Court Proceedings.................................. 4 C. Court Of Appeals Proceedings............................ 5 REASONS FOR GRANTING THE CONDITIONAL CROSS-PETITION ................................... 9 I. IN REVIEWING DOMA’S CONSTITUTIONALITY, THIS COURT SHOULD ALSO CONSIDER WHETHER DOMA VIOLATES THE TENTH AMENDMENT AND THE SPENDING CLAUSE ............. 9 II. DOMA VIOLATES THE TENTH AMENDMENT AND THE SPENDING CLAUSE ........................ 11 A. DOMA Violates The Tenth Amend-
ment ...................................................................... 11 B. DOMA Violates The Spending Clause............. 15
(v)

vi
TABLE OF CONTENTS—Continued
Page
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause......................................... 16
2. DOMA violates the Spending Clause because it bears no relation to the federal spending programs at issue........................................................... 18
CONCLUSION ................................................................. 19

vii TABLE OF AUTHORITIES

CASES

Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ..................................................................... 16

Bell v. Tug Shrike, 332 F.2d 330 (4th Cir. 1964) ........... 13

Bond v. United States, 131 S. Ct. 2355 (2011) ............... 13

Coleman v. Thompson, 501 U.S. 722 (1991) .................. 15

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010) ........... 13

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).................................. 11

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) ............................................................................ 10

Haddock v. Haddock, 201 U.S. 562 (1906) ..................... 12

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ............. 12

Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315 (1935) ....................................... 11

McCarty v. McCarty, 453 U.S. 210 (1981) ..................... 12

McConnell v. FEC, 540 U.S. 93 (2003), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010)................. 14, 15

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) ...................... 12, 18

New York v. United States, 505 U.S. 144 (1992) .......................................................... 11, 14, 15, 19

Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994) .............................................................. 9

viii
TABLE OF AUTHORITIES—Continued
Page(s) Slessinger v. Secretary of HHS, 835 F.2d 937
(1st Cir. 1987) .............................................................. 13 South Dakota v. Dole, 483 U.S. 203 (1987)............ passim Tidewater Marine Towing, Inc. v. Curran-
Houston, Inc., 785 F.2d 1317 (5th Cir. 1986) .......... 13 United States v. American Library Ass’n, 539
U.S. 194 (2003) ............................................................ 17 United States v. Darby, 312 U.S. 100 (1941).................. 11 United States v. Lopez, 514 U.S. 549 (1995)................... 13
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
U.S. Const. art. I, § 8, cl. 1..................................................... passim amend. V.............................................................. 4, 6, 16 amend. X............................................................. passim amend. XIV ............................................................. 3, 16
8 U.S.C. § 1186a(b)(1)(A)(i) .............................................. 14 28 U.S.C. § 1254(1)............................................................... 2 Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7) ....................................................................... passim S. Ct. R. 12.5 ......................................................................... 2
OTHER AUTHORITIES
Federalist No. 45 (Madison)............................................. 11

ix
TABLE OF AUTHORITIES—Continued
Page(s)
Hayes, Christopher J., Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593 (1996) .......................... 13

CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI
The Commonwealth of Massachusetts, by and through its Attorney General, respectfully submits this conditional cross-petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. For the reasons set forth in the Commonwealth’s response to the petitions for certiorari filed in Nos. 12-13 and 12-15, the Commonwealth does not oppose this Court’s review of this case. However, if this Court grants either of those petitions, it should also grant this conditional crosspetition to the extent necessary to address the Commonwealth’s contentions under the Tenth Amendment and Spending Clause.
OPINIONS BELOW
The opinion of the court of appeals is reported at 682 F.3d 1 and reproduced at Pet. App. 1a-28a.1 The opinion of the district court is reported at 698 F. Supp. 2d 234 and reproduced at Pet. App. 82a-120a. The opinion of the district court in Gill, the companion case, is reported at 699 F. Supp. 2d 374 and reproduced at Pet. App. 29a-72a.
JURISDICTION
The judgment of the court of appeals was entered on May 31, 2012. BLAG Pet. App. 30a-31a. BLAG and the United States filed petitions for certiorari on June 29, 2012, and July 3, 2012 respectively, and both peti-
1 References to “Pet. App.” are to the appendix to the United States’ petition in No. 12-15. References to “BLAG Pet. App.” are to the appendix to BLAG’s petition in No. 12-13.

2
tions were docketed on July 3, 2012. This conditional cross-petition is timely pursuant to this Court’s Rule 12.5. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Tenth Amendment to the Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Article I, section 8, clause 1 of the Constitution provides, in relevant part: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”
The text of Section 3 of DOMA, codified at 1 U.S.C. § 7, is reproduced at Pet. App. 125a.
STATEMENT
A. Introduction
The Commonwealth of Massachusetts, pursuant to its sovereign prerogative and the Massachusetts Declaration of Rights, has issued marriage licenses to samesex couples since 2004. These marriage licenses are indistinguishable from those issued to different-sex couples in all respects but one: they are singled out and rendered invalid for purposes of federal law under DOMA’s unprecedented federal definition of marriage. DOMA disregards lawful marriages between same-sex couples for all purposes under federal law—affecting over a thousand federal statutes as well as numerous federal regulations. In addition to harming lawfully-

3
married residents of the Commonwealth by giving their marriages no effect under federal law, DOMA harms the Commonwealth by encroaching on its sovereign prerogative in two important ways.
First, DOMA is an impermissible federal intrusion into the Commonwealth’s regulation of marriage, an area that this Court has consistently recognized is— and has been since the Founding—one of exclusive State authority. Whereas most States recognize a single marital status that is given effect under federal law as well as State law, DOMA effectively divides marriage in Massachusetts into two different statuses: married for all purposes for different-sex spouses, and married but “federally single” for same-sex spouses. This federal interference in the State regulation of domestic relations is unprecedented in our history and violates the Tenth Amendment.
Second, in violation of the Spending Clause, DOMA forces the Commonwealth, as a condition of receipt of federal funds, to engage in unconstitutional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. For example, as a condition of continued federal funding of its Medicaid program, DOMA requires the Commonwealth to disregard the marriages of only same-sex couples when assessing eligibility for the program. Likewise, DOMA requires the Commonwealth to refuse to bury a decorated veteran alongside his same-sex spouse in a veterans’ cemetery on Commonwealth-owned land that has been funded under the federal State Cemetery Grants Program or else risk recapture of the federal funds used to establish and maintain that cemetery. Placing such conditions on the Commonwealth’s receipt of federal funds exceeds Congress’s power. DOMA separately violates the Spending Clause because it fails even the most leni-

4
ent articulation of the germaneness requirement: DOMA’s disregard of lawful marriages bears no relationship whatsoever to the purposes of the federal programs it affects, including Medicaid and the State Cemetery Grants Program.
B. District Court Proceedings
The Commonwealth sued the United States and various federal defendants, seeking a declaration that DOMA violates the Tenth Amendment and the Spending Clause and asking the district court to enjoin DOMA’s application in Massachusetts. Pet. App. 82a120a. In Gill v. Office of Personnel Management, same-sex spouses married under Massachusetts law brought a parallel claim that the United States’ failure to recognize their marriages under federal law violated the equal protection component of the Due Process Clause of the Fifth Amendment. Id. 29a-72a. The United States moved to dismiss, and the Commonwealth and the Gill plaintiffs cross-moved for summary judgment, submitting detailed evidence in support of their claims. The United States did not dispute the evidence submitted. Pet. App. 44a n.68, 101a n.112.
The district court granted summary judgment to the Commonwealth and the Gill plaintiffs, ruling in Gill that DOMA is unconstitutional because it violates equal protection, and in the Commonwealth’s case that DOMA is unconstitutional because it violates the Spending Clause and the Tenth Amendment. Pet. App. 29a-30a, 83a. With regard to the Spending Clause, the district court held that “DOMA induces the Commonwealth to violate the equal protection rights of its citizens” and thereby “imposes an unconstitutional condition on the receipt of federal funding,” in contravention of “a well-established restriction on the exercise of

5
Congress’ spending power.” Id. 110a.2 With regard to the Tenth Amendment, the district court held that DOMA encroaches upon the Commonwealth’s sovereign authority “to recognize same-sex marriages among its residents, and to afford those individuals in samesex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status.” Id. 120a.3
The district court declared DOMA unconstitutional as applied to the Commonwealth and the Gill plaintiffs and entered injunctions preventing DOMA’s enforcement against them. Pet. App. 75a-81a, 123a-124a. In particular, the court entered judgment in the Commonwealth’s favor on its Tenth Amendment and Spending Clause claims and enjoined DOMA’s enforcement against the Commonwealth and any of its agencies or officials. Id. 124a. The judgment also provided that DOMA “is unconstitutional as applied in Massachusetts, where State law recognizes marriages between same-sex couples.” Id.
C. Court Of Appeals Proceedings
The United States appealed. At the United States’ request, the court of appeals consolidated the Gill case with the Commonwealth’s case. The United States filed an opening brief in the consolidated cases defend-
2 The district court did not reach the Commonwealth’s alternative argument that DOMA violates the Spending Clause by imposing a condition that is not germane to the federal spending programs at issue. Pet. App. 110a-111a.
3 The facts and prior judgments in the two cases are discussed in greater detail in the Commonwealth’s response in support of certiorari in Nos. 12-13 and 12-15.

6
ing DOMA’s constitutionality under the Fifth Amendment’s equal protection component, the Tenth Amendment, and the Spending Clause. Before the Commonwealth and the Gill plaintiffs filed their responsive briefs, the United States informed the court of appeals that the President and Attorney General had concluded that classifications based on sexual orientation should be evaluated under heightened scrutiny, that Section 3 of DOMA could not survive that level of scrutiny, and that the United States would therefore cease its defense on equal protection grounds of the constitutionality of Section 3. Pet. App. 6a. BLAG then sought and was granted leave to intervene as an appellant in order to defend DOMA against the equal protection challenge.4
The United States filed a superseding brief, asserting that DOMA should be evaluated under a heightened equal protection standard, which the United States agreed DOMA could not satisfy. The United States’ superseding brief also agreed that because DOMA violates equal protection, it necessarily violates the Spending Clause by imposing an unconstitutional condition on the Commonwealth’s receipt of federal funds. However, the United States continued to argue that DOMA violates neither the Tenth Amendment nor the Spending Clause’s germaneness requirement.
BLAG filed a brief addressing only the equal protection arguments and did not address the district
4 After BLAG was permitted to intervene, the Gill plaintiffs moved for initial hearing en banc, and the United States later joined in the request. The Commonwealth and BLAG neither supported nor opposed the request. The court of appeals denied initial hearing en banc by an equally divided vote.

7
court’s ruling that DOMA violates the Tenth Amendment and Spending Clause.
The court of appeals affirmed the district court’s judgment. BLAG Pet. App. 30a-31a. The court of appeals’ decision stated, however, that “[i]n our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA.” Pet. App. 14a. With respect to the Tenth Amendment, the court acknowledged that before DOMA’s enactment, Congress consistently looked to State law to determine marital status for purposes of federal law. Id. 15a. Nonetheless, the court concluded that a Tenth Amendment claim could succeed “only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government.” Id. 16a. Because DOMA “does not share these two vices of commandeering or direct command,” the court discerned no Tenth Amendment violation. Id.
The court did not address the Commonwealth’s primary Spending Clause argument: that by conditioning federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth disregard lawful same-sex marriages, DOMA makes federal funds turn on a violation of the Equal Protection Clause and, accordingly, runs afoul of the rule that Congress cannot condition federal funds on a State’s violation of an independent constitutional requirement. See South Dakota v. Dole, 483 U.S. 203, 206 (1987). The court ruled that DOMA did not “run afoul of the ‘germaneness’ requirement [of the Spending Clause] that conditions on federal funds must be related to federal purposes.” Pet. App. 16a.
With respect to equal protection, the court of appeals concluded that discrimination on the basis of sex-

8
ual orientation, standing alone, did not warrant “strict” or “intermediate” scrutiny under this Court’s equal protection jurisprudence—a conclusion it based both on circuit precedent and its reading of this Court’s precedent. Pet. App. 8a-14a. However, “[g]iven that DOMA intrudes broadly into an area of traditional state regulation,” the court of appeals concluded that “a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.” Id. 18a.
Analyzing DOMA through the lens of federalism, the court observed that “the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage.” Pet. App. 16a. After addressing each of BLAG’s proffered justifications in defense of DOMA on equal protection grounds, the court concluded that, while these reasons might suffice under a traditional rational-basis analysis, they did not clear the higher bar required by the added federalism concerns raised in this case. Id. 22a-23a (“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.”).
The court of appeals entered a judgment in the consolidated cases that states, in full: “The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.” BLAG Pet. App. 30a-31a.

9
REASONS FOR GRANTING THE CONDITIONAL CROSS-PETITION
I. IN REVIEWING DOMA’S CONSTITUTIONALITY, THIS COURT SHOULD ALSO CONSIDER WHETHER DOMA VIOLATES THE TENTH AMENDMENT AND THE SPENDING CLAUSE
The petitions for certiorari in Nos. 12-13 and 12-15 seek review of the court of appeals’ holding that DOMA violates equal protection. As the Commonwealth’s response (incorporated here by reference) explains, that holding, although correct, is worthy of this Court’s consideration. Accordingly, this Court should grant certiorari and affirm DOMA’s unconstitutionality.
In addressing the constitutionality of DOMA, this Court should also consider the Commonwealth’s Tenth Amendment and Spending Clause arguments pressed and decided below, which present important questions of federalism that are best addressed in a case where a State appears as a party. As the Commonwealth’s response explains more fully, the Tenth Amendment and Spending Clause provide additional and independent bases for affirming the judgment in the Commonwealth’s favor.
Indeed, the Commonwealth believes that these separate grounds for affirmance could be fully considered without need for a conditional cross-petition: “A prevailing party need not cross-petition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment.” Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994). Because the district court entered judgment for the Commonwealth (Pet. App. 123a124a), and the court of appeals’ judgment fully affirmed that judgment (BLAG Pet. App. 30a-31a), a determina-

10
tion by this Court that DOMA violates the Tenth Amendment or the Spending Clause would not alter the existing judgment. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39 (1989) (no cross-petition required where “an affirmance on [an] alternative ground would neither expand nor contract the rights of either party established by the judgment below”).
However, in light of the court of appeals’ statement that “neither the Tenth Amendment nor the Spending Clause invalidates DOMA” (Pet. App. 14a), and BLAG’s assertion that the court of appeals “squarely rejected Massachusetts’ Tenth Amendment and Spending Clause challenges” (BLAG Pet. 15), the Commonwealth is concerned that petitioners or the Court might interpret the court of appeals’ judgment as something other than an affirmance in the Commonwealth’s favor. The Commonwealth therefore files this conditional cross-petition out of an abundance of caution, to ensure that there is no impediment to the Court’s consideration of the full scope of DOMA’s constitutional infirmities. As the remainder of this conditional cross-petition shows, the Tenth Amendment and Spending Clause are additional bases for ruling DOMA unconstitutional.5
5 As discussed infra pp. 17-18, the court of appeals’ conclusion that DOMA violates equal protection cannot be reconciled with its statement that DOMA does not violate the Spending Clause, because Congress cannot condition the grant of federal funds under the spending power on a State’s violation of another constitutional provision. South Dakota v. Dole, 483 U.S. 203, 206 (1987). If DOMA violates equal protection, its enforcement in the context of joint federal-State programs such as Medicaid and the State Cemetery Grants Program necessarily violates the Spending Clause as well.

11
II. DOMA VIOLATES THE TENTH AMENDMENT AND THE SPENDING CLAUSE
A. DOMA Violates The Tenth Amendment
As the Commonwealth’s response explains in greater detail, DOMA violates the Tenth Amendment because it purports to regulate a “domain of activity set apart by the Constitution as the province of the states.” Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 338 (1935) (Cardozo, J.). In so doing, DOMA exceeds the scope of permissible congressional power and violates the State sovereignty secured by the Tenth Amendment.
The Tenth Amendment provides that Congress may not enact legislation in areas reserved to the States. U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).6 As the court of
6 See, e.g., United States v. Darby, 312 U.S. 100, 124 (1941) (purpose of Tenth Amendment was “to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers”); see also New York v. United States, 505 U.S. 144, 156 (1992) (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“States remain sovereign as to all powers not vested in Congress or denied them by the Constitution[.]”); Federalist No. 45 (Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”).

12
appeals properly acknowledged, domestic relations are one such area. Pet. App. 15a (“DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.”). This Court has also repeatedly recognized that “‘[t]he whole subject of the domestic relations of husband and wife … belongs to the laws of the States and not to the laws of the United States.’” McCarty v. McCarty, 453 U.S. 210, 220 (1981) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)); see also Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce …. [T]he Constitution delegated no authority to the Government of the United States on th[at] subject.”).
As the uncontroverted record in the district court established, the States’ exclusive authority over marital status has never been limited to defining its contours for purposes of State law. Rather, to the extent Congress has chosen to predicate federal law on marital status, State marital determinations have controlled for purposes of federal law as well. Indeed, prior to DOMA, Congress had never refused to recognize a State determination of marital status. Pet. App. 60a61a; see also id. 15a (“Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime.”); National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (opinion of Roberts, C.J.) (“[S]ometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s

13
action. At the very least, we should ‘pause to consider the implications’ … when confronted with such new conceptions of federal power.” (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010), and United States v. Lopez, 514 U.S. 549, 564 (1995) (first three alterations in original))).7
DOMA is therefore a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation, supplanting the States’ settled, uninterrupted authority to define marital status for all purposes. Because the Tenth Amendment “reserve[s]” the regulation of marriage to “the States,” DOMA’s federal definition of marriage exceeds the limited powers conferred on the federal government by the Constitution. See Bond v. United States, 131 S. Ct. 2355, 2366 (2011) (“Impermissible interference with state sovereignty is not within the enu-
7 See Hayes, Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593, 1602-1603 (1996); see also, e.g., Slessinger v. Secretary of HHS, 835 F.2d 937, 939 (1st Cir. 1987) (rejecting application of federal common law rule to eligibility determination under Social Security Act and instead deferring to State rule: “This conclusion is strongly reinforced by the settled principle that matters of divorce and marital status are uniquely of state, not federal concern. It would do violence to this principle for a court to apply federal law under the Act to give effect to a foreign divorce decree that would not be honored in the state of domicile.” (citations omitted)); Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317, 1318-1320 (5th Cir. 1986) (rejecting application of federal common law rule in eligibility determination under federal maritime law: “We are aware of few instances in which state interests are accorded more deference by federal courts than in defining familial status.”); Bell v. Tug Shrike, 332 F.2d 330, 334-336 (4th Cir. 1964) (same).

14
merated powers of the National Government, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.” (citation omitted)).8
While the court of appeals correctly recognized that “no precedent exists for DOMA’s sweeping general ‘federal’ definition of marriage for all federal statutes and programs” (Pet. App. 15a), the court nonetheless found that DOMA did not violate the Tenth Amendment. The court based this conclusion on the mistaken rationale that a Tenth Amendment claim can succeed “only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government.” Id. 16a. This conclusion misstates this Court’s Tenth Amendment doctrine, which has never suggested that the Tenth Amendment is violated only by commandeering or direct command. To the contrary, this Court has ruled that States’ immunity from commandeer is not necessarily “the outer limit[] of [State] sovereignty.” New York v. United States, 505 U.S. 144, 188 (1992). The Court reaffirmed that understanding in McConnell v. FEC, explaining that “in maintaining the federal system envisioned by the Founders, this Court has done
8 As the court of appeals correctly acknowledged, this is not to say that Congress has no interest in “who counts as married,” but rather that this interest can be satisfied by Congress’s legislation “in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i),” where Congress has added requirements beyond marriage. Pet. App. 15a. Moreover, every marriage can at least potentially satisfy such additional federal criteria. DOMA’s omnibus approach, effectively nullifying a large category of marriages for all federal purposes, contrasts starkly with these narrow, program-specific statutory criteria.

15
more than just prevent Congress from commandeering the States. We have also policed the absolute boundaries of congressional power under Article I.” 540 U.S. 93, 187 (2003), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010).9
The court of appeals’ narrow reading of the Tenth Amendment directly conflicts with this Court’s precedents. Certiorari is warranted to clarify that DOMA, in addition to violating the equal protection rights of Massachusetts citizens, also violates the constitutional structure of federalism enshrined in the Tenth Amendment.
B. DOMA Violates The Spending Clause
Congress’s power under the Spending Clause (U.S. Const. art. I, § 8, cl. 1) includes the ability to condition States’ receipt of federal funds upon compliance with federal directives. While this power is broad, it is not unfettered, and is circumscribed by the limitations articulated in South Dakota v. Dole, 483 U.S. 203 (1987). A valid exercise of the spending power must be: (1) “in pursuit of the general welfare”; (2) unambiguous; (3) related to “‘the federal interest’” in furtherance of which the spending power is being exercised; (4) not independently barred by other constitutional provisions; and (5) not “so coercive as to pass the point at which pressure turns into compulsion.” Id. at 207-208, 211 (internal quotation marks omitted).
9 Holding Congress to its delegated powers is not simply a matter of protecting State prerogatives. “‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York, 505 U.S. at 181 (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).

16
The Commonwealth argued below that DOMA runs afoul of two of these restrictions. First, it conditions federal funds on the Commonwealth’s violation of another constitutional provision, namely the Equal Protection Clause of the Fourteenth Amendment.10 Second, DOMA fails the “relatedness” (or germaneness) requirement because its disregard of State marriage determinations bears no relationship to the federal spending programs it affects—notably here, Medicaid and the State Cemetery Grants Program. Both grounds provide independent bases for invalidating DOMA.
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause
By conditioning the Commonwealth’s receipt of federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth discriminate on the basis of whether a person is married to a spouse of the same sex, DOMA forces the Commonwealth to violate the Equal Protection Clause and, accordingly, exceeds Congress’s power under the Spending Clause.
10 As the lower courts, the United States, and BLAG all agree, this Court’s approach “to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (internal quotation marks omitted). Thus, if DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment when enforced by the federal government, it also violates the Equal Protection Clause of the Fourteenth Amendment when enforced by a State.

17
This Court ruled in Dole that “a grant of federal funds conditioned on invidiously discriminatory state action … would be an illegitimate exercise of Congress’ broad spending power.” 483 U.S. at 210-211; see also United States v. American Library Ass’n, 539 U.S. 194, 203 (2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. But Congress may not ‘induce’ the recipient ‘to engage in activities that would themselves be unconstitutional.’” (citation omitted; quoting Dole, 483 U.S. at 210)).
The court of appeals’ ruling that DOMA violates equal protection thus compels a finding that DOMA also violates the Spending Clause. In the context of the State Cemetery Grants Program, DOMA prevents the Commonwealth from burying the same-sex spouse of a veteran in a cemetery on Commonwealth-owned land that was funded under the program: If the Commonwealth treats the same-sex spouse as eligible for burial in the cemetery (as a different-sex spouse would be), the Commonwealth risks being required to return the federal funding the Commonwealth has received to establish and maintain the cemetery. Likewise, DOMA forces the Commonwealth to administer Medicaid in a way that treats different-sex marriages differently from identically-situated same-sex marriages, forcing the Commonwealth to engage in unconstitutional discrimination as a condition of receipt of federal funds.
The court of appeals did not discuss this aspect of the Commonwealth’s Spending Clause argument. But the court’s statement that DOMA does not violate the Spending Clause (Pet. App. 16a-17a) cannot be reconciled with its finding that DOMA violates equal protection. Indeed, neither the United States nor BLAG has ever disputed that if DOMA violates equal protection,

18
it must also violate the Spending Clause by forcing the Commonwealth to violate equal protection in its dealings with its own citizens.
By requiring the Commonwealth to engage in unconstitutional discrimination as a condition of receiving and retaining federal funds, DOMA is precisely the type of impermissible exercise of Congress’s spending power prohibited by the Constitution. See Dole, 483 U.S. at 208; cf. National Fed’n of Indep. Bus., 132 S. Ct. at 2659 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (“our cases have long held that the power to attach conditions to grants to the States [under the Spending Clause] has limits”). Certiorari is warranted to address this unconstitutional exercise of federal power.
2. DOMA violates the Spending Clause because it bears no relation to the federal spending programs at issue
DOMA separately violates the Spending Clause’s requirement that federal funds not be limited by conditions “unrelated to the federal interest in [the affected] national projects or programs.” Dole, 483 U.S. at 207 (internal quotation marks omitted). The court of appeals believed that this requirement was “not implicated” because DOMA “merely defines the terms of the federal benefit.” Pet. App. 16a. If that were true, however, Dole’s germaneness requirement would be a dead letter, because any irrelevant condition may be cast as a limit on “the terms of the federal benefit.” In Dole, the germaneness requirement was met because the goal of the federal highway funds program at issue was to ensure safe interstate highway travel. That goal was promoted by the condition that States adopt a uniform minimum drinking age: “the lack of uniformity in the States’ drinking ages created an incentive to drink and

19
drive because young persons commut[e] to border States where the drinking age is lower.” 483 U.S. at 209 (internal quotation marks omitted).
Here, unlike in Dole, neither the court of appeals nor the United States in its briefing below has ever provided a plausible explanation of how the purposes of the programs affected by DOMA are served by refusing to recognize marriages lawfully contracted under Massachusetts law. Medicaid is designed to provide subsidized medical care to needy individuals, yet DOMA compels the Commonwealth to provide and pay for coverage of individuals in high-income families because their potentially disqualifying marriages cannot be recognized for purposes of federal Medicaid eligibility. And no colorable argument can be made that DOMA’s prohibition on burying a decorated veteran with his husband is “related” to a program that exists for the purpose of burying veterans with their loved ones.
DOMA’s disregard of lawful marriages is not “reasonably related to the purpose[s]” of these programs. New York, 505 U.S. at 172. If anything, it is directly at odds with them. Accordingly, as a limitation on the receipt of federal funds, it cannot pass even the most lenient test for “relatedness,” and certiorari is warranted to correct the court of appeals’ contrary ruling.
CONCLUSION
If the Court grants certiorari in either No. 12-13 or No. 12-15, it should also grant this conditional crosspetition to the extent necessary to reach the Commonwealth’s Tenth Amendment and Spending Clause claims.

Respectfully submitted.

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109
ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

JULY 2012

 </s> Case: 1:09-cv-11156 As of: 10/27/2017 01:55 AM EDT 1 of 9
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:09−cv−11156−JLT

Commonwealth of Massachusetts v. United States Department of Date Filed: 07/08/2009

Health and Human Services et al

Date Terminated: 08/12/2010

Assigned to: Judge Joseph L. Tauro

Jury Demand: None

related Case: 1:09−cv−10309−LTS

Nature of Suit: 950 Constitutional − State

Case in other court: First Circuit, 10−02204 Supreme Court, 12−00015

Statute Jurisdiction: Federal Question

Supreme Court, 12−00097

Cause: 28:1331 Fed. Question

Plaintiff

Commonwealth of Massachusetts

represented by Christopher K. Barry−Smith Massachusetts Attorney General's Office One Ashburton Place Boston, MA 02108 617−963−2539 Fax: 617−727−5765 Email: chris.barry−smith@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

David S. Friedman Office of the Attorney General (Bos) One Ashburton Place Boston, MA 02108 617−727−2200 Email: david.s.friedman@state.ma.us TERMINATED: 01/26/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Miller Office of the Attorney General (MA) Suite 301 10 Mechanic Street Worcester, MA 01608 617−963−2073 Fax: 617−727−5762 Email: jonathan.miller@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura T. Healey Massacusetts Attorney General's Office One Ashburton Place 18th Flr. Boston, MA 02108 617−727−2200 ext. 2068 Fax: 617−727−5762 Email: maura.healey@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica M. Lindemann Barnes & Thornburg 11 South Meridian Street Indianapolis, IN 46204−3599 317−236−1313 Email: jessica.lindemann@btlaw.com

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TERMINATED: 07/08/2011 ATTORNEY TO BE NOTICED

V. Defendant United States Department of Health and Human Services
Defendant Kathleen Sebelius in her official capacity as the Secretary of the United States Department of Health and Human Services
Defendant United States Department of Veterans Affairs
Defendant Eric K. Shinseki in his official capacity as the Secretary of the United States Department of Veterans Affairs

represented by Christopher R. Hall U.S. Department of Justice Federal Programs Branch 20 Massachusetts Avenue NW Room 7128 Washington, DC 20530 202−514−4778 Fax: 202−616−8470 Email: Christopher.Hall@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler U.S. Department of Justice Civil Division P.O. Box 883 Ben Franklin Station Washington, DC 20001 202−305−0167 Fax: 202−616−8470 Email: steven.bressler@usdoj.gov TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Y. Bressler

Case: 1:09-cv-11156 As of: 10/27/2017 01:55 AM EDT 3 of 9

(See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Christopher R. Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Y. Bressler (See above for address) TERMINATED: 05/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Representative Lamar Smith TERMINATED: 01/19/2011

represented by Philip D. Moran Law Offices of Philip D. Moran 265 Essex Street Suite 202 Salem, MA 01970 978−745−6085 Fax: 978−741−2572 Email: philipmoranesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Mark Thomas TERMINATED: 06/16/2010

represented by Mark Thomas 482 Beacon Street Boston, MA 02115 617−267−2859 PRO SE

Date Filed 07/08/2009 07/08/2009 07/08/2009 07/08/2009
07/08/2009

# Docket Text
1 COMPLAINT Payment will be delivered against all defendants, filed by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Civil Cover Sheet, # 6 Civil Cover Sheet)(Miller, Jonathan) (Entered: 07/08/2009)
ELECTRONIC NOTICE of Case Assignment. Judge Joseph L. Tauro assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Robert B. Collings (Cummings, Mary) (Entered: 07/08/2009)
2 General Order 09−1, dated January 6, 2009 regarding the E−Government Act and Personal Identifiers entered. (Cummings, Mary) (Entered: 07/08/2009)
3 Summons Issued as to United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Cummings, Mary) (Entered: 07/08/2009)
Letter sent to Attorney David Friedman advising of inactive status in the Bar of this Court. Notice, reregistration and ECF application included. (Abaid, Kimberly) (Entered: 07/08/2009)

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07/09/2009 09/02/2009
09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/17/2009 09/17/2009 10/01/2009 10/01/2009
10/07/2009
10/08/2009 10/09/2009 10/30/2009 10/30/2009
10/30/2009

Filing fee/payment: $ 350.00, receipt number BST011613 for 1 Complaint (Russo, Patricia) (Entered: 07/09/2009)
4 NOTICE of Appearance by Steven Y. Bressler on behalf of United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America (Bressler, Steven) (Entered: 09/02/2009)
5 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States Department of Health and Human Services served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
6 SUMMONS Returned Executed by Commonwealth of Massachusetts. Kathleen Sebelius served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
7 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States Department of Veterans Affairs served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
8 SUMMONS Returned Executed by Commonwealth of Massachusetts. Eric K. Shinseki served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
9 SUMMONS Returned Executed by Commonwealth of Massachusetts. United States of America served on 8/13/2009, answer due 10/13/2009. (Miller, Jonathan) (Entered: 09/04/2009)
10 MOTION to Intervene or MOTION for Leave to File Amicus Brief ( Responses due by 10/1/2009) by Mark Thomas.(Abaid, Kimberly) (Entered: 09/17/2009)
11 AFFIDAVIT by Mark Thomas. (Abaid, Kimberly) (Entered: 09/17/2009)
12 RESPONSE to Motion re 10 MOTION to Intervene MOTION for Leave to File filed by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit)(Miller, Jonathan) (Entered: 10/01/2009)
13 RESPONSE to Motion re 10 MOTION to Intervene MOTION for Leave to File filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 10/01/2009)
14 Assented to MOTION for Extension of Time to October 30, 2009 to Respond to Plaintiff's Complaint by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/07/2009)
15 MOTION for Leave to Clarify Motion of September 17, 2009 by Mark Thomas.(Abaid, Kimberly) (Entered: 10/08/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 14 Motion for Extension of Time (Lovett, Zita) (Entered: 10/09/2009)
16 MOTION to Dismiss by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/30/2009)
17 MEMORANDUM in Support re 16 MOTION to Dismiss filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 10/30/2009)
18 Assented to MOTION for Leave to File Excess Pages in Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss (Docket Entry No. 17) by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America.(Bressler, Steven) (Entered: 10/30/2009)

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11/02/2009 11/17/2009 11/19/2009
11/19/2009 01/26/2010 01/29/2010
01/29/2010 01/29/2010 02/01/2010 02/11/2010 02/17/2010
02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010 02/18/2010

19 Letter from Maura T. Healey. (Abaid, Kimberly) (Entered: 11/03/2009)
20 STIPULATION And Proposed Order Regarding Schedule by Commonwealth of Massachusetts. (Healey, Maura) (Entered: 11/17/2009)
21 Judge Joseph L. Tauro: ENDORSEMENT re 20 Stipulation filed by Commonwealth of Massachusetts − APPROVED AND SO ORDERED. (Abaid, Kimberly) (Entered: 11/19/2009)
Set/Reset Deadlines as to 16 MOTION to Dismiss. Responses due by 2/1/2010 Replies due by 3/29/2010. (Abaid, Kimberly) (Entered: 11/19/2009)
22 NOTICE of Withdrawal of Appearance for David Friedman (Miller, Jonathan) Modified on 1/26/2010 (Abaid, Kimberly). (Entered: 01/26/2010)
23 Assented to MOTION for Extension of Time to Respond to Defendants' Motion to Dismiss to February 18, 2010 by Commonwealth of Massachusetts. (Attachments: # 1 Exhibit)(Miller, Jonathan) (Entered: 01/29/2010)
Judge Joseph L. Tauro: Electronic ORDER entered granting 23 Motion for Extension of Time to respond to February 18, 2010. (Lovett, Zita) (Entered: 01/29/2010)
Judge Joseph L. Tauro: Electronic ORDER entered finding as moot 18 Motion for Leave to File Excess Pages (Lovett, Zita) (Entered: 01/29/2010)
Set/Reset Deadlines as to 16 MOTION to Dismiss. Responses due by 2/18/2010 (Johnson, Jay) (Entered: 02/01/2010)
24 MOTION to Intervene and File Motion to Dismiss by Mark Thomas.(Abaid, Kimberly) (Entered: 02/12/2010)
25 MOTION for Leave to File Excess Pages for Memorandum of Law in Opposition to Defendants' Motion to Dismiss and in Support of Plaintiff's Motion for Summary Judgment by Commonwealth of Massachusetts.(Miller, Jonathan) (Entered: 02/17/2010)
26 MOTION for Summary Judgment by Commonwealth of Massachusetts.(Miller, Jonathan) (Entered: 02/18/2010)
27 STATEMENT of facts re 26 MOTION for Summary Judgment. (Miller, Jonathan) (Entered: 02/18/2010)
28 MEMORANDUM in Support re 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
29 MEMORANDUM in Opposition re 16 MOTION to Dismiss filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
30 AFFIDAVIT of Robin Callahan re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
31 AFFIDAVIT of William Walls re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
32 AFFIDAVIT of Kevin McHugh re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
33 AFFIDAVIT of Dolores Mitchell re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
34 AFFIDAVIT of Stanley Nyberg re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
35 AFFIDAVIT of Michael Lamb re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
36 AFFIDAVIT of Gary Segura re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
37 AFFIDAVIT of Gregory Herek re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)

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02/18/2010 02/18/2010 02/18/2010 02/23/2010 02/25/2010
03/04/2010 03/09/2010 03/24/2010
03/24/2010
03/25/2010 04/22/2010
04/30/2010
04/30/2010
04/30/2010 05/18/2010 05/19/2010 05/26/2010

38 AFFIDAVIT of George Chauncey re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
39 AFFIDAVIT of Nancy Cott re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
40 AFFIDAVIT of Jonathan Miller re 26 MOTION for Summary Judgment by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/18/2010)
41 RESPONSE to Motion re 24 MOTION to Intervene filed by Commonwealth of Massachusetts. (Healey, Maura) (Entered: 02/23/2010)
42 RESPONSE to Motion re 24 MOTION to Intervene filed by United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Veterans Affairs, Eric K. Shinseki, United States of America. (Bressler, Steven) (Entered: 02/25/2010)
43 AFFIDAVIT of Robin Callahan re 26 MOTION for Summary Judgment (with signature) by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 03/04/2010)
ELECTRONIC NOTICE of Hearing :Motion Hearing set for 5/26/2010 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 03/09/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 10 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/24/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 25 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/24/2010)
44 MEMORANDUM in Support re 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 03/25/2010)
45 Judge Joseph L. Tauro:ORDER entered. DENIED 10 Motion to Intervene or Motion for Leave to File Amicus Brief; DENIED 15 Motion for Leave to Clarify Motion of September 17, 2009; DENIED 24 Motion for Leave to Intervene and File a Motion to Dismiss. (Geraldino−Karasek, Clarilde) (Entered: 04/23/2010)
46 NOTICE of Appearance by Christopher R. Hall on behalf of Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America (Hall, Christopher) (Entered: 04/30/2010)
47 REPLY to Response to 16 MOTION to Dismiss and Consolidated Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America. (Attachments: # 1 Response to Plaintiff's Statement of Material Facts Not in Dispute)(Hall, Christopher) (Entered: 04/30/2010)
48 Response by United States of America to 27 Statement of facts. (Abaid, Kimberly) (Entered: 05/03/2010)
49 NOTICE of Appearance by Jessica M. Lindemann on behalf of Commonwealth of Massachusetts (Lindemann, Jessica) (Entered: 05/18/2010)
50 REPLY to Response to 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 05/19/2010)
ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: taking under advisement 26 Motion for Summary Judgment; taking under advisement 16 Motion to Dismiss; Motion Hearing held on 5/26/2010 re 16 MOTION to Dismiss filed by United States Department of Health and Human Services, Kathleen Sebelius,

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06/07/2010
06/07/2010 06/14/2010 06/16/2010 06/16/2010
06/24/2010 07/08/2010 07/08/2010 07/19/2010 07/23/2010 07/26/2010 07/29/2010
08/12/2010 08/12/2010

Eric K. Shinseki, United States of America, United States Department of Veterans Affairs, 26 MOTION for Summary Judgment filed by Commonwealth of Massachusetts. (Court Reporter: Helana Kline at 508−525−7769.)(Attorneys present: Healy,Miller,Lindeman,pltfs;Hall,deft.) (Lovett, Zita) (Entered: 05/27/2010)
51 Transcript of Motion Hearing held on May 26, 2010, before Judge Joseph L. Tauro. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Helena Kline at 508−525−7769 Redaction Request due 6/28/2010. Redacted Transcript Deadline set for 7/8/2010. Release of Transcript Restriction set for 9/7/2010. (Scalfani, Deborah) (Main Document 51 replaced on 6/9/2010) (Scalfani, Deborah). (Entered: 06/07/2010)
52 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 06/07/2010)
53 MOTION to Leave to Intervene and MOTION to Compel Ruling pursuant to 28 U.S.C.A. § 1652; Rule 24 (b) United States Constitution Article IV § 4 and 14th Amendment by Mark A. Thomas.(Geraldino−Karasek, Clarilde) (Entered: 06/15/2010)
54 RESPONSE to Motion re 53 MOTION to Intervene filed by Commonwealth of Massachusetts. (Lindemann, Jessica) (Entered: 06/16/2010)
55 Judge Joseph L. Tauro: ORDER entered DENIED IN PART and DENIED IN PART AS MOOT re 53 Motion to Leave to Intervene and Motion to Compel Ruling pursuant to 28 U.S.C.A. § 1652; Rule 24 (b) United States Constitution Article IV § 4 and 14th Amendment by Mark A. Thomas. (Geraldino−Karasek, Clarilde) (Entered: 06/16/2010)
56 RESPONSE and AFFIDAVIT of Applicant−Intervenor filed by Mark Thomas re 55 . (Geraldino−Karasek, Clarilde) Modified to create document association on 6/25/2010 (Geraldino−Karasek, Clarilde). (Entered: 06/24/2010)
57 Judge Joseph L. Tauro: ORDER entered. Defendant's Motion to Dismiss re 16 is DENIED and Plaintiff's Motion for Summary Judgment re 26 is ALLOWED. IT IS ORDERED. (Main Document 57 replaced to correct docket entry on 7/8/2010) (Geraldino−Karasek, Clarilde). (Entered: 07/08/2010)
58 Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered. Defendant's Motion to Dismiss re 16 is DENIED and Plaintff's Motion for Summary Judgment re 26 is ALLOWED. AN ORDER HAS ISSUED.(Main Document 58 replaced on 7/8/2010 to correct docket entry ) (Geraldino−Karasek, Clarilde). (Entered: 07/08/2010)
59 MOTION for Leave to Intervene and MOTION to Amend, Revise, or Vacate Judgment pursuant to Rule 24 (b); Rule 59 (e) and 14th Amendment Due Process Clause by Mark Thomas.(Geraldino−Karasek, Clarilde) (Entered: 07/20/2010)
60 Opposition re 59 MOTION for Leave to File filed by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 07/23/2010)
61 MOTION for Leave to File Clarifying Points of Law to Movant's Rule 24(b) and 59 (e) Motions by Mark Thomas.(Geraldino−Karasek, Clarilde) (Entered: 07/26/2010)
62 Judge Joseph L. Tauro: ORDER entered. After reviewing the Parties' written submissions, this court hereby orders that: MOTION for Leave to Intervene and MOTION to Amend, Revise, or Vacate Judgment, re 59 IS DENIED and MOTION for Leave to File Clarifying Points of Law to Movant's Motion to Amend, Revise or Vacate Judgment re 61 IS DENIED. See Order for details. IT IS SO ORDERED. (Geraldino−Karasek, Clarilde) (Entered: 07/29/2010)
63 Judge Joseph L. Tauro: JUDGMENT ORDER entered. (Geraldino−Karasek, Clarilde) (Entered: 08/12/2010)
Civil Case Terminated. (Geraldino−Karasek, Clarilde) (Entered: 08/12/2010)

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08/19/2010 08/24/2010 08/24/2010 10/05/2010 10/05/2010 10/05/2010 10/05/2010
10/12/2010
10/12/2010 10/13/2010 10/18/2010 10/18/2010 01/19/2011 07/07/2011

64 Assented to MOTION to Stay re 63 Judgment for Stay of Injunctive Relief Pending Appeal by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 08/19/2010)
65 Judge Joseph L. Tauro: ORDER entered ALLOWED 64 Motion to Stay of Injunctive Relief Pending Appeal. (Geraldino−Karasek, Clarilde) (Entered: 08/25/2010)
66 Judge Joseph L. Tauro: ORDER entered 64 . The Defendants' is GRANTED, and the injunctive relief entered as part of the judgment is this action is stayed pending the disposition of any appeal filed by the Defendants. (Geraldino−Karasek, Clarilde) (Entered: 08/25/2010)
67 MOTION to Intervene by Lamar Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Notice of Appeal)(Moran, Philip) (Entered: 10/05/2010)
68 MEMORANDUM in Support re 67 MOTION to Intervene filed by Lamar Smith. (Moran, Philip) (Entered: 10/05/2010)
69 NOTICE of Appearance by Philip D. Moran on behalf of Lamar Smith (Moran, Philip) (Entered: 10/05/2010)
70 MOTION for Leave to Appear Pro Hac Vice for admission of Brian W. Raum, Byron J. Babione, Dale Schowengerdt Filing fee: $ 150, receipt number 0101−3096097 by Lamar Smith. (Attachments: # 1 Certificate of Brian W. Raum for Leave to Appear Pro Hac Vice, # 2 Certificate of Byron J. Babione for Leave to Appear Pro Hac Vice, # 3 Certificate of Dale Schowengerdt for Leave to Appear Pro Hac Vice, # 4 Proposed Order)(Moran, Philip) (Entered: 10/05/2010)
71 Defendants' NOTICE OF APPEAL as to 63 Judgment, 57 Memorandum & ORDER, 58 Order, by Kathleen Sebelius, Eric K. Shinseki, United States Department of Health and Human Services, United States Department of Veterans Affairs, United States of America Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/1/2010. (Hall, Christopher) (Entered: 10/12/2010)
72 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 71 Notice of Appeal, (Ramos, Jeanette) (Entered: 10/12/2010)
USCA Case Number 10−2204 for 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. (Ramos, Jeanette) (Entered: 10/13/2010)
73 NOTICE of Withdrawal re 67 MOTION to Intervene by Lamar Smith (Moran, Philip) (Modified on 10/20/2010 to correct docket entry Geraldino−Karasek, Clarilde). (Entered: 10/18/2010) (Entered: 10/18/2010)
E−Mail Notice re 73 originally issued on 10/18/2010 returned as undeliverable. Name of Addressee: Jessica Lindemann. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Burgos, Sandra) (Entered: 10/18/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered FINDING AS MOOT 67 Motion to Intervene; FINDING AS MOOT 70 Motion for Leave to Appear Pro Hac Vice pursuant to 73 Notice of Withdrawal Motion. (Geraldino−Karasek, Clarilde) (Entered: 01/19/2011)
74 NOTICE of Withdrawal of Appearance by Jessica M. Lindemann (Lindemann, Jessica) (Entered: 07/07/2011)

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05/31/2012
05/31/2012 07/09/2012 07/31/2012 06/27/2013 06/27/2013 07/01/2013

75 USCA Judgment as to 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals. Judgment issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
76 OPINION of USCA as to 71 Notice of Appeal, filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. Opinion issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
77 Case Appealed to Supreme Court, Case Number 12−15. The petition for a writ of certiorari in the above entitled case was filed on July 3, 2012. (Ramos, Jeanette) (Entered: 07/09/2012)
78 Case Appealed to Supreme Court, Case Number 12−97. The petition for a writ of certiorari in the above entitled case was filed on July 20, 2012 (Ramos, Jeanette) (Entered: 07/31/2012)
79 Order entered from the U.S. Supreme Court. The Petition for a Writ of Certiorari is Denied. (Paine, Matthew) (Entered: 06/28/2013)
80 Order entered from the U.S. Supreme Court. The Petition for a Writ of Certiorari is Denied. (Paine, Matthew) (Entered: 06/28/2013)
81 MANDATE of USCA as to 71 Notice of Appeal filed by United States Department of Health and Human Services, Kathleen Sebelius, Eric K. Shinseki, United States of America, United States Department of Veterans Affairs. Appeal 71 Terminated (Paine, Matthew) (Entered: 07/02/2013)


[CONTENT] July 8, 2009 | Massachusetts | the U.S. District Court | the Declaratory Judgment Act | 28 |||  ||| Defense of Marriage Act | 1 | the Tenth Amendment | Congress ||| Constitution | Commonwealth ||| July 8, 2010 | Court | Joseph L. Tauro | Commonwealth | Massachusetts ||| Massachusetts | U.S. | Health & Human Services | 698 | 234 | D. | Mass. | 2010 ||| the same day | Tauro | Gill v. Office of Personnel Management | 699 | D. | Mass. | 2010 | PB-MA-0006 | two ||| Court | Tauro ||| February 24, 2011 | the Department of Justice | the Court of Appeals ||| September 22 ||| the Bipartisan Legal Advisory Group | the House of Representatives ||| August 23, 2011 | the Department of Justice | the Court of Appeals | Sandra L. Lynch ||| April 4, 2012 | May 31 | three | the First Circuit | Lynch | Michael Boudin | Juan R. Torruella | the District Court's | Boudin ||| Massachusetts | U.S. | Health & Human Services | 10-2204 | 2012 | 1948017 ||| May 31, 2012 ||| the Court of Appeals | Court | Supreme Court | United States | Department of Agriculture v. Moreno | 413 | U.S. | 1973 | 473 | U.S. | 1985 | Romer v. Evans | 517 | U.S. | United States | Morrison | 529 | U.S. | 2000 | United States | 514 | U.S. | 1995 ||| the Supreme Court | the Department of Justice | July 3, 2012 ||| The Supreme Court | June 27, 2013 [SUMMARY] On July 8, 2009, the Commonwealth of Massachusetts filed a lawsuit in the U.S. District Court for the District of Massachusetts under the Declaratory Judgment Act, 28 U.S.C. § 2201, against the federal government. The plaintiff asked the court for declaratory and injunctive relief, alleging an overreaching of federal authority into an exclusive sphere of the states. Specifically, the plaintiff claimed that the federal Defense of Marriage Act, 1 U.S.C. § 7, violates the Tenth Amendment, exceeds Congress's Article I powers, and runs afoul of the Constitution's principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth's sovereign authority to define marriage and to regulate the marital status of its citizens.

On July 8, 2010, the Court (Judge Joseph L. Tauro), substantially agreeing with the Commonwealth's characterization of DOMA, granted the plaintiff's motion for summary judgment and enjoined the federal government from enforcing DOMA against Massachusetts or its agencies. Massachusetts v. U.S. Dep't of Health & Human Services, 698 F.Supp.2d 234 (D. Mass. 2010).   (The decision was issued the same day as Judge Tauro's decision striking down DOMA on equal protection grounds, in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), PB-MA-0006, and the two cases were consolidated on appeal.)  The defendants appealed and moved for a stay of the injunction pending their appeal, and the Court (Judge Tauro) granted their motion. 

On February 24, 2011, the Department of Justice indicated to the Court of Appeals that it had come to the conclusion that DOMA is unconstitutional and would cease defending it. (It would later file a brief in support of the plaintiffs' case on September 22.) In response, the Bipartisan Legal Advisory Group of the House of Representatives intervened to defend the act.

On August 23, 2011, the plaintiff moved for an initial en banc hearing to expedite the case, but despite a supporting brief from the Department of Justice, the Court of Appeals (Chief Judge Sandra L. Lynch) denied the motion. 

After hearing arguments on April 4, 2012, on May 31 a three-judge panel of the First Circuit (Chief Judge Lynch, Judge Michael Boudin, and Judge Juan R. Torruella) unanimously affirmed the District Court's judgment in an opinion by Judge Boudin. Massachusetts v. U.S. Dep't of Health & Human Services, No. 10-2204, 2012 WL 1948017 (1st Cir. May 31, 2012). While the Court of Appeals refrained from applying heightened scrutiny, it also declined to employ hyper-deferential rational basis review; instead, the Court held that Supreme Court precedent in cases implicating the interests of historically disadvantaged minority groups (e.g. United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), Romer v. Evans, 517 U.S. 620 (1996)) and cases considering federal action in areas of traditional state concern (e.g. United States v. Morrison, 529 U.S. 598 (2000), United States v. Lopez, 514 U.S. 549 (1995)) suggested a more searching form of rational basis inquiry (so-called 'rational basis with bite'), and that the rationales given for DOMA did not hold up under this closer scrutiny. Injunctive relief was stayed pending the possibility of review by the Supreme Court; the Department of Justice sought review on July 3, 2012. The Supreme Court denied certiorari on June 27, 2013.