Case 3:10-cv-01750-VLB Document 33 Filed 01/14/11 Page 1 of 81

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT

CIVIL ACTION NO. 310 CV 1750 (VLB)

__________________________________________

JOANNE PEDERSEN & ANN MEITZEN,

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GERALD V. PASSARO II,

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LYNDA DEFORGE & RAQUEL ARDIN,

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JANET GELLER & JOANNE MARQUIS,

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SUZANNE & GERALDINE ARTIS,

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BRADLEY KLEINERMAN & JAMES GEHRE

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DAMON SAVOY & JOHN WEISS

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL MANAGEMENT,

)

TIMOTHY F. GEITHNER, in his official capacity )

as the Secretary of the Treasury, and

)

HILDA L. SOLIS, in her official capacity as the )

Secretary of Labor,

)

MICHAEL J. ASTRUE, in his office capacity

)

as the Commissioner of the Social Security

)

Administration,

)

UNITED STATES POSTAL SERVICE,

)

JOHN E. POTTER, in his official capacity as

)

The Postmaster General of the United States of )

America,

)

DOUGLAS H. SHULMAN, in his official

)

capacity as the Commissioner of Internal

)

Revenue,

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ERIC H. HOLDER, JR., in his official capacity

)

as the United States Attorney General,

)

JOHN WALSH, in his official capacity as Acting )

Comptroller of the Currency,

and

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THE UNITED STATES OF AMERICA,

)

)

Defendants.

)

___________________________________________)

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Introduction/Nature of the Action 1. This is a case about federal discrimination against gay and lesbian individuals married to someone of the same sex, and the harm that discrimination has caused each plaintiff. 2. Plaintiffs in this action are variously citizens of the State of Connecticut, the State of Vermont and the State of New Hampshire. They are all citizens of the United States of America. Each of the plaintiffs is, or was until becoming a widower, legally married to a person of the same sex in accordance with the requirements of applicable state law. 3. Although the federal government does not license marriages, a large number of its programs take marital status into account in determining eligibility for federal protections, benefits and responsibilities. Statute, precedent and practice establish state law as the touchstone for determining a couple’s marital status for purposes of determining eligibility for federal programs. 4. Each plaintiff, or his or her spouse, has made one or more requests to the appropriate agencies or authorities within the federal government, or the appropriate state agency subject to federal law, for treatment as a married couple, a spouse, or a widower with respect to particular programs or benefits. Yet each of the plaintiffs has been denied and is still being denied legal protections and benefits under federal law that are available to a similarly situated person married to an individual of a different sex under pertinent Connecticut, Vermont or New Hampshire law.
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5. With each denial of specific protections or benefits, the defendants, their agents or those subject to their legal directives have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”) and have stated that the federal government will only respect marriages between a man and a woman.
6. A number of the plaintiffs, as set forth below, seek spousal protections based on their employment with, or their spouse’s employment with, the United States government. Plaintiff Joanne Pedersen, a federal retiree from the Department of the Navy, Office of Naval Intelligence, has “Self Only” health insurance coverage and is unable, like similarly-situated federal retirees married to spouses of the opposite sex, to enroll in “Self and Family” coverage to add her spouse, Plaintiff Ann Meitzen, to that plan. Plaintiff Lynda DeForge, a 25-year employee of the United States Post Office, has been denied leave under the Family Medical Leave Act (FMLA) to care for her spouse, Plaintiff Raquel Ardin. Both DeForge and Ardin have “Self-Only” FEHB health insurance plans, and have been denied “Self and Family” coverage to cover the two of them under one policy. In each instance, DOMA, 1 U.S.C. § 7, has barred the plaintiffs’ access to benefits routinely granted to others in similar circumstances. Plaintiff Damon Savoy, who has been a federal government employee for more than 20 years, is unable, like similarly-situated federal employees married to spouses of the opposite sex, to add his spouse, John Weiss, to his existing “Self and Family” health insurance plan.
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7. One of the plaintiffs, Gerald V. Passaro II, seeks spousal protections afforded by the Social Security program. Specifically, he seeks the “One-Time Lump-Sum Death Benefit” normally available upon the death of a spouse. He is denied this benefit by the Social Security Administration because of DOMA, 1 U.S.C. § 7.
8. In addition, Plaintiff Gerald V. Passaro II has been denied the ERISA-mandated qualified preretirement survivor annuity (QPSA) available under the defined benefit pension plan under which his now-deceased husband was vested through his employment with the Bayer Corporation. He has been denied this mandatory spousal benefit because of DOMA, 1 U.S.C. § 7.
9. Two of the plaintiffs, as set forth below, are losing the benefit of financial assistance with health insurance coverage under the New Hampshire state retirement system because of the refusal of the Internal Revenue Service (“IRS”) to recognize their actual spousal status on the basis of DOMA, 1 U.S.C. § 7. More particularly, Plaintiff Joanne Marquis has applied for the medical cost spousal benefit for her spouse, Plaintiff Janet Geller, and the New Hampshire Retirement System has been required to deny this benefit to Joanne because of its legal obligation to comply with Internal Revenue Code § 401(h), which, because of DOMA, 1 U.S.C. § 7, prohibits the extension of the benefit to a spouse of the same sex as the state retiree.
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10. Several of the plaintiffs, as set forth below, are being denied their correct spousal status by the Internal Revenue Service (“IRS”) on the basis of DOMA, 1 U.S.C. § 7, and thus have been required to pay more in federal income taxes than other similarly situated opposite-sex married persons. Plaintiffs Suzanne and Geraldine Artis, and Plaintiffs Bradley Kleinerman and James “Flint” Gehre, each seek to file their federal income tax returns as a married couple using the filing status of “Married Filing Jointly” rather than “Single” or “Head of Household.” Both Plaintiff couples filed amended federal income tax returns with the IRS, seeking to be recognized as married taxpayers and requesting refunds.
11. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and Fed. R. Civ. P. Rule 57. It seeks a determination that DOMA, 1 U.S.C. § 7, as applied to the plaintiffs, violates the United States Constitution by refusing to recognize lawful marriages for purposes of the laws governing defined benefit pension plans and state retirement plans, the laws governing benefits for federal retirees, the Family Medical Leave Act, the Internal Revenue Code and the Social Security laws. The result of these violations of the Constitution is that each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex.
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Jurisdiction and Venue 12. This action arises under the Constitution of the United States and the laws of the United States. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331; 28 U.S.C. §§ 2201-2202; 5 U.S.C. § 8912; 29 U.S.C. § 2617(a)(2); and 42 U.S.C. § 405(g). 13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) because more than one of the plaintiffs resides in this district, and the events giving rise to their claims arose in this district.
Parties 14. Plaintiff JOANNE PEDERSEN is a citizen of the State of Connecticut and resides in Waterford, Connecticut. 15. Plaintiff ANN MEITZEN is a citizen of the State of Connecticut and resides in Waterford, Connecticut. 16. Plaintiff GERALD V. PASSARO II is a citizen of the State of Connecticut and resides in Milford, Connecticut. 17. Plaintiff LYNDA DEFORGE is a citizen of the State of Vermont and resides in North Hartland, Vermont. 18. Plaintiff RAQUEL ARDIN is a citizen of the State of Vermont and resides in North Hartland, Vermont. 19. Plaintiff JANET GELLER is a citizen of the State of New Hampshire and resides in Goffstown, New Hampshire. 20. Plaintiff JOANNE MARQUIS is a citizen of the State of New Hampshire and resides in Goffstown, New Hampshire.
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21. Plaintiff SUZANNE ARTIS is a citizen of the State of Connecticut and resides in Clinton, Connecticut.
22. Plaintiff GERALDINE ARTIS is a citizen of the State of Connecticut and resides in Clinton, Connecticut.
23. Plaintiff BRADLEY KLEINERMAN is a citizen of the State of Connecticut and resides in Avon, Connecticut.
24. Plaintiff JAMES “FLINT” GEHRE is a citizen of the State of Connecticut and resides in Avon, Connecticut.
25. Plaintiff DAMON SAVOY is a citizen of the State of Connecticut and resides in Danbury, Connecticut.
26. Plaintiff JOHN WEISS is a citizen of the State of Connecticut and resides in Danbury, Connecticut.
27. Defendant OFFICE OF PERSONNEL MANAGEMENT is an independent establishment of the Executive Branch of the government of the United States. Its actions, rules and regulations are subject to review by the federal courts.
28. Defendant TIMOTHY F. GEITHNER is currently the United States Secretary of the Treasury. In his official capacity, the Secretary of the Treasury is responsible – together with the Secretary of Labor – for the administration and enforcement of the Employee Retirement Income Security Act of 1974 (ERISA). In his official capacity, the Secretary of the Treasury is also responsible for the administration and enforcement of the internal revenue laws. See 26 U.S.C. § 7801. In his official capacity, the
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Secretary of the Treasury is also responsible for the administration of employee-related benefits within all bureaus of the United States Treasury.
29. Defendant HILDA L. SOLIS is currently the United States Secretary of Labor. In her official capacity, the Secretary of Labor is responsible – together with the Secretary of the Treasury – for the administration and enforcement of ERISA.
30. Defendant MICHAEL J. ASTRUE is currently the Commissioner of the Social Security Administration, an independent agency of the United States Government. In his official capacity, the Commissioner of the Social Security Administration is responsible for the administration and enforcement of the Social Security Act.
31. Defendant UNITED STATES POSTAL SERVICE is an independent establishment of the Executive Branch of the government of the United States, empowered by Congress to sue and be sued in its own name.
32. Defendant JOHN E. POTTER is currently the Postmaster General of the United States of America. In his official capacity, the Postmaster General is responsible for the administration of employeerelated benefits within the United States Postal Service.
33. Defendant DOUGLAS H. SHULMAN is currently the Commissioner of Internal Revenue. In his official capacity, the Commissioner of Internal Revenue is responsible for the administration and enforcement of the internal revenue laws.
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34. Defendant ERIC H. HOLDER, JR. is currently the Attorney General of the United States. In his official capacity, the Attorney General is the chief federal official responsible for the enforcement of all federal statutes in accordance with the Constitution of the United States of America.
35. Defendant JOHN WALSH is currently the Acting Comptroller of the Currency. In his official capacity, the Acting Comptroller is responsible for the administration of employee-related benefits within the Office of the Comptroller of the Currency.
36. Defendant THE UNITED STATES OF AMERICA is the proper defendant in a complaint seeking refund of federal income taxes pursuant to 26 U.S.C. § 7422(f)(1).
Facts Common To All Plaintiffs And All Claims 37. Each plaintiff is a citizen of the State of Connecticut, or the State of Vermont or the State of New Hampshire. Each is a citizen of the United States and has borne the obligations of citizenship by paying taxes and contributing to Social Security. 38. As United States citizens, each of the plaintiffs is entitled to equal consideration and treatment from the federal government with respect to each and every program operated by the federal government, including employment and retirement benefits arising from private employment or employment with the federal or state government, and Social Security.
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39. Each of the plaintiffs is, or was until becoming a widower, married to a person of the same sex in accordance with the legal requirements of the state of his or her residence. Each of the plaintiffs married to establish and convey the commitment, permanency and interconnectedness of a marital relationship, and to nurture and support his or her family. Each of these marriages was duly recognized under state law.
40. DOMA, 1 U.S.C. § 7, burdens the plaintiffs’ familial relationships, including their ability to form, support and maintain their marriages and families.
41. Although each of the plaintiffs is similarly situated to all other married or widowed persons in the states of Connecticut, Vermont and New Hampshire, DOMA, 1 U.S.C. § 7, intrudes into their marriages, severs them into “federal” and “state” components, and states that their marriages are not marriages for all federal purposes. DOMA, 1 U.S.C. § 7, thereby burdens and stigmatizes their marital relationships, causing confusion and complexity in a culture where people are expected to have one familial and marital status, whether dealing with private, state or federal entities.
42. DOMA, 1 U.S.C. § 7, requires the plaintiffs to deny the existence of their families and the nature of their familial relationships. For example, DOMA, 1 U.S.C. § 7, forces plaintiffs to misstate their actual marital status and describe themselves as “unmarried” to United States
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government officials and on United States government forms on pain of civil or criminal sanctions. For example, federal retirees like Plaintiff Joanne Pedersen could face criminal charges for false statements if she claimed Ann as her spouse on a health benefits election form. 18 U.S.C. § 1001. Under the Social Security Act, “any false statement” of a “material fact,” including marriage, in connection with an application for benefits, is punishable as a felony. 42 U.S.C. § 408. Federal income tax law requires income tax returns to be signed under the pains and penalties of perjury, 26 U.S.C. § 7206, but DOMA, 1 U.S.C. § 7, forces the plaintiffs to make blatant misrepresentations about their families and their marital status.
43. The requirement, imposed by DOMA, 1 U.S.C. § 7, that plaintiffs inaccurately identify their marital status as “single” or “unmarried” in federal contexts, even though they are legally married, burdens and stigmatizes their family relationships.
44. As sovereign States of the United States of America, the States of Connecticut, Vermont and New Hampshire have, since their ratification of the United States Constitution and, indeed, before then, exclusively established and ordained the legal requirements for civil marriage within their sovereign jurisdiction and the status of spouses to such marriages entered into within their geographical territory.
45. Effective November 12, 2008, with the implementation of the Connecticut Supreme Court’s constitutional determination in Kerrigan v. Comm’r of Public Health, 289 Conn.135 (2008), same-sex couples who
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otherwise complied with the requirements for obtaining a marriage license in the State of Connecticut were and are entitled to marry under the law of the State.
46. Effective September 1, 2009, in accordance with legislation adopted in the State of Vermont, same-sex couples who otherwise complied with the requirements for obtaining a marriage license in the State of Vermont were and are entitled to marry under the law of the State.
47. Effective January 1, 2010, in accordance with legislation adopted in the State of New Hampshire, same-sex couples who otherwise complied with the requirements for obtaining a marriage license in the State of New Hampshire were and are entitled to marry under the law of the State.
48. Since November 12, 2008, the State of Connecticut, pursuant to the Constitution of Connecticut, has created, established, and recognized a single marital status that is available to every qualifying couple, whether same-sex or different-sex, i.e., regardless of the sex of the two parties to the marriage.
49. Since September 1, 2009, the State of Vermont, by legislative action, has created, established, and recognized a single marital status that is available to every qualifying couple, whether same-sex or different-sex, i.e., regardless of the sex of the two parties to the marriage.
50. Since January 1, 2010, the State of New Hampshire, by legislative action, has created, established, and recognized a single marital
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status that is available to every qualifying couple, whether same-sex or different-sex, i.e., regardless of the sex of the two parties to the marriage.
51. The State of Connecticut has also made a political determination that different-sex couples and same-sex couples must be treated the same with respect to marriage and its attendant rights and responsibilities. The Connecticut Legislature has expressly codified the Kerrigan decision. See, e.g., Conn. Gen. Stat. § 46b-20.
52. The plaintiffs are similarly situated to persons married to individuals of a different sex and, under Connecticut, Vermont and New Hampshire law, are accorded the same status, responsibilities, and protections as other married persons. Federal law, however, treats samesex and opposite-sex couples differently in the specific ways set forth in Paragraphs 73 through 267 below.
53. The federal government of the United States has, since its founding and at least until 1996, recognized the exclusive authority every state possesses, as an essential part of its sovereignty, to determine the civil status and capacities of all its inhabitants, including the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.
54. Throughout history and at least until 1996, the United States has consistently deferred to the sovereignty of the States when the marital status of an individual has been used as a marker of eligibility or access to some benefit, right, or responsibility identified by the federal government.
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The “Defense of Marriage Act” 55. Congress enacted the so-called “Defense of Marriage Act” (“DOMA, 1 U.S.C. § 7”), P.L. 104-199, in 1996, and it was approved on September 21, 1996. 56. This law responded to “a very particular development in the State of Hawaii.” H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905, at 2906. As the controlling House Judiciary Committee Report explained “the state courts in Hawaii appear on the verge of requiring that State to issue marriage licenses to same-sex couples,” and that development “threatens to have very real consequences … on federal law….” Id. More specifically, [I]f Hawaii does ultimately permit homosexuals to “marry,” that development could have profound practical implications for federal law. For to the extent that federal law has simply accepted state law determinations of who is married, a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. Id., at 2914. 57. Section 3 of DOMA, 1 U.S.C. § 7, provides in its entirety as follows: 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’
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“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’.” 58. In passing DOMA, 1 U.S.C. § 7, Congress took the unprecedented step of preemptively nullifying a class of marriages that it expected states would begin to license at some point in the future, that is, marriages of same-sex couples. It withdrew from these marriages, but not from others, all federal financial and other responsibilities and protections. 59. With regard to a gay or lesbian individual married to someone of the same sex, DOMA, 1 U.S.C. § 7, has overridden the longstanding deference of federal to state law in determining the marital status of an individual seeking the benefit or responsibility of any federal law triggered by a person’s state-established marital status, and categorically denies both rights and responsibilities. 60. In a 1997 Report, the General Accounting Office (“GAO”) estimated that at least 1,049 federal laws were affected by DOMA, 1 U.S.C. § 7, because those laws depended on or in some way related to marital status. U.S. Gen. Accounting Office, GAO/OGC-97-16 Defense of Marriage
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Act (1997), available at http://www.gao.gov/archive/1997/og97016.pdf. A follow-up study in 2004 found that 1,138 federal laws tied benefits, protections, or responsibilities to marital status. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
61. If not for the application of DOMA, 1 U.S.C. § 7, to all federal programs, the plaintiffs, as persons married whether under Connecticut, Vermont or New Hampshire law, would receive the same status, responsibilities and protections under federal law as other married persons. Yet when same-sex couples began to marry in Connecticut, Vermont and New Hampshire, DOMA, 1 U.S.C. § 7, operated to single out one class of marriages legally recognized by the States of Connecticut, Vermont and New Hampshire, those of same-sex couples, and to deny their existence for all conceivable ends and purposes of federal law.
62. Plaintiffs have been denied legal protections normally available to spouses under federal law. Despite plaintiffs’ willingness to assume the legally imposed responsibilities of marriage at the federal level, just as they do at the state level, they are prevented from doing so by DOMA, 1 U.S.C. § 7.
63. DOMA, 1 U.S.C. § 7, grants preferred legal status and unique privileges to individuals married to someone of a different sex.
64. The official House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No. 104-664, advances four rationales for why the federal government drew a
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line between its treatment of an individual married to a person of the same sex versus an individual married to a person of the opposite sex. Those reasons are:
(1) H.R. 3396 [the bill number] ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL HETEROSEXUAL MARRIAGE.
(2) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY.
(3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF GOVERNANCE.
(4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES.
65. None of these interests is adequate to justify discrimination against married persons in same-sex relationships. The first two rationales have nothing to do with any federal interest and simply reflect a belief that same-sex couples should not be permitted to marry.
66. The first claimed federal “interest” in “defending” “traditional heterosexual marriage” simply restates the government’s intent to discriminate against same-sex couples and provides no independent justification for the government’s discriminatory action, particularly as to same-sex couples who are already married. The federal government has long accepted state determinations of marital status, even in the face of changes in marriage licensing by the states. The only state-licensed marriages it categorically refuses to respect are those of same-sex couples. In short, this “interest” repeats the distinction drawn by DOMA, 1
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U.S.C. § 7, that is, between married couples of the same sex and married couples of different sexes, but it does not explain it.
67. The federal government’s refusal to recognize the plaintiffs’ marriages does not nurture, improve, stabilize or enhance the marriages of other married couples. Nor would the federal government’s recognition of plaintiffs’ marriages degrade, destabilize or have any other deleterious effect on the marriages of other married couples.
68. The second claimed federal interest in “morality” was simply a vehicle for Congress to express its “moral disapproval of homosexuality.” H.R. Rep. No. 104-664, pp. 15-16. This illegitimate “interest” is nothing more than discrimination for its own sake, based on bare disapproval for a particular group of citizens. Gay men, lesbians and bisexuals have suffered a long history of public and private discrimination. Discrimination for its own sake is not a legitimate purpose upon which disadvantageous classifications may be imposed. Moreover, sexual orientation bears no relation whatsoever to an individual’s ability to participate in or contribute to society.
69. The third claimed interest in “protecting state sovereignty” is actually subverted by DOMA, 1 U.S.C. § 7, not advanced by it. Congress contravened inherent constitutional principles of federalism and failed to honor our nation’s system of dual sovereignty in enacting DOMA, 1 U.S.C. § 7, because it is the states, and not the federal government, that regulate marriage and determine family status. Congress did not “protect” state
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sovereignty in enacting DOMA, 1 U.S.C. § 7, since it dishonored the sovereignty of the states that license or recognize marriages of same-sex couples.
70. As to the fourth claimed interest of preserving government resources, the available data from the Congressional Budget Office establishes that recognizing the marriages of individuals married to a person of the same sex would result in an annual net increase in federal revenue through 2014. Congressional Budget Office, U.S. Congress, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, June 21, 2004. There was and is no factual basis for the claim that DOMA, 1 U.S.C. § 7, “preserve[s] scarce government resources.”
71. While the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families. Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex. Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.
72. At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest.
Facts Particular To Individual Plaintiffs
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Plaintiffs Joanne Pedersen and Ann Meitzen 73. Plaintiff Joanne Pedersen (“Joanne”) is a retired civil
employee of the Department of the Navy, Office of Naval Intelligence. When she retired, Joanne had more than 30 years of service with the federal government.
74. Joanne and her spouse Ann Meitzen (“Ann”) have been in a committed relationship for 12 years.
75. Joanne and Ann live in a home they jointly own in Waterford, Connecticut and which they purchased in August 1999.
76. Although marriage was not available to them, in 2003 they decided that it was time to have a commitment ceremony; and so, in August 2004, they made that commitment to each other in a ceremony in their backyard before their family and friends.
77. Ann currently works as a regional supervisor for a private, notfor-profit case management agency that assesses, coordinates and manages care for frail elders and some disabled individuals. She has been doing this work for more than 20 years.
78. On December 22, 2008, a month after marriage became available to same-sex couples in Connecticut, Joanne and Ann were married in strict and complete accordance with Connecticut law.
79. Although Joanne and Ann married to make a public admission of their relationship and its legitimacy, specialness and singularity, they
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also looked forward to some spousal benefits they expected to receive from the federal government.
80. As a retired federal employee, Joanne is enrolled in the Federal Employees Health Benefits Program (“FEHB”).
81. Since her retirement, Joanne has been enrolled in FEHB under a “Self-Only” plan, covering, as the name suggests, herself only.
82. Pursuant to 5 U.S.C. § 8905, 5 C.F.R. § 890.306(g)(1) and the FEHB handbook, an FEHB enrollee is allowed to change her enrollment from “Self Only” to “Self and Family” beginning 31 days before, and ending 60 days after, a change in family status, which includes a change in marital status.
83. According to the FEHB Handbook, “Self and Family” enrollment is described as follows:
Self and Family A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member. FEHB Handbook, Enrollment, Types of Enrollment. 84. According to 5 U.S.C. § 8901(5), “member of family” is defined, in part, to “mean[] the spouse of an employee or annuitant and an unmarried child,” provided the child meets an age limit.
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85. Within the 60-day period in which to request a change in enrollment following her December 22, 2008 marriage, Joanne telephoned her insurer, Blue Cross Blue Shield, to inform the insurer of her marriage to Ann and to find out how to add Ann to her insurance plan.
86. Joanne was informed that she could not add Ann to her health insurance plan.
87. Subsequently, on July 8, 2010, Joanne sent a written request by Certified Mail to the Office of Personnel Management (“OPM”) to clarify whether the information she had received in early 2009 was correct and, if not, how and when she could add Ann to her health insurance plan. Joanne has yet to receive any response from OPM. The letter was signed for by OPM on July 12, 2010. Letter from Joanne G. Pedersen to OPM, Retirement Operations Center, Boyer, PA, Certified Mail No. 7009-22500001-0238-0700 (dated July 7, 2010; mailed July 8, 2010).
88. On November 8, 2010, during the open enrollment period, Joanne again attempted, using the online option, to change her health insurance enrollment from “Self-Only” to “Self and Family” to add Ann as her spouse; she was rebuffed. After adding all the required information on the “Dependent Information” screen, the next screen provided the following message, “We are unable to process your request. If you think the family member you wish to enroll is eligible, please call us ….”
89. As a result of OPM’s application of DOMA, 1 U.S.C. § 7, Joanne has been denied health insurance benefits available to the spouses of
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federal retirees even though she is legally Ann’s spouse under Connecticut law.
90. As a result of this exclusion from benefits, Joanne and Ann have suffered specific and concrete financial harms to themselves and to their household. In particular, because Ann has Hypersensitivity Pneumonitis and Asthmatic Bronchitis, chronic lung conditions that have resulted in recurrent bouts of pneumonia and have taxed her ability to work, she would be substantially benefited if she could retire from her fulltime employment and instead work part-time. However, Ann has been forced to continue to struggle with full-time employment because she cannot be without the health insurance her job provides when the cost of private insurance, if she retired, is prohibitive. For Ann, access to the FEHB program would improve her life and the life of her family.
Plaintiff Gerald V. Passaro II 91. Plaintiff Gerald V. Passaro II (“Jerry”) is the surviving spouse
of Thomas M. Buckholz (“Tom”), who died in January 2009 after a long battle with lymphoma.
92. Jerry and Tom had been in a committed relationship for 13 years when they married at home in Milford, Connecticut on November 26, 2008. They married to formalize and commemorate their long-time union and partnership in the State of Connecticut.
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93. Tom worked as a chemist for the Bayer Corporation (“Bayer”) in West Haven, Connecticut for more than 20 years until he was laid off in January 2007.
94. Based upon his years of employment with Bayer, Tom was fully vested in the Bayer Corporation Pension Plan (“the Bayer Plan”) and had “earned a monthly benefit, expressed as an unreduced Single Life Annuity, of $1,169.01.” (Bayer document: “Salaried Plan Statement of Deferred Vested Benefit 04-03-2007,” pg. 1).
95. Tom could have received this single life annuity starting on February 1, 2026, reflecting Tom having reached the age of 65. In addition, Tom was eligible to receive a benefit (possibly reduced) “as early as February 01, 2016,” because the Bayer Plan allowed participants with Tom’s work history to take early retirement at age 55.
96. Tom died on January 9, 2009, just shy of his 48th birthday. 97. Tom named Jerry as his beneficiary under the Bayer Plan, and Bayer acknowledged this by identifying Jerry by his birth date in a document sent to Tom in April 2007. (Bayer document: “Salaried Plan Calculation Statement 04-03-2007,” pg. 1). 98. Following Tom’s death, Jerry contacted the Bayer Benefits Department and was informed that because he (Jerry) was a man, Bayer would not be paying on Tom’s pension as Jerry and Tom were “not legally married.”
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99. Jerry then contacted the United States Department of Labor and spoke to a Ross Boull, who contacted the supervisor of the Bayer Benefits Department. From this, Jerry was informed again that DOMA, 1 U.S.C. § 7, was being cited as the reason why he would receive no benefit under the Bayer Plan.
100. On August 26, 2009, Jerry wrote to Bayer formally requesting that Bayer provide him benefits as the beneficiary of Tom’s pension and also requesting that, after a series of telephone communications, all future communications be in writing. (Passaro Letter to Bayer, August 26, 2009).
101. On January 6, 2010, Jerry contacted Vanguard, the administrator of the Bayer Plan. Jerry was advised that no benefits were going to be payable to him under the Bayer Plan because of DOMA.
102. On January 12, 2010, Vanguard sent Jerry the appeals letter, notifying him of his right to have the Bayer Corporation Review Committee review his claim. (Employee Benefits Claim Review Request form).
103. Jerry filled out the appeal request form; signed it; and dated it February 2, 2010.
104. Jerry also mailed a separate letter to Bayer, dated March 23, 2010, appealing the denial of his late spouse’s pension. That letter included, as an attachment, the Salaried Plan Calculation Statement, dated 04-03-2007, received by Thomas Buckholz and identified in Paragraph 97, above. (Passaro Letter to Bayer “Chairman, Central HR/Benefits Department,” March 23, 2010).
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105. Vanguard responded to Jerry’s January 6, 2010 contact with a letter, dated January 27, 2010. That letter attempted to explain to Jerry how DOMA operated to prohibit a pension plan from treating “a participant in a same-sex marriage as ‘married’ for purposes of the QJSA [Qualified Joint and Survivor Annuity] rules.” (Vanguard Letter to Passaro, January 27, 2010).
106. Bayer acknowledged receipt of Jerry’s appeal by letter dated March 26, 2010. (Bayer Letter to Passaro, March 26, 2010).
107. By letter dated May 14, 2010, the Bayer ERISA Review Committee informed Jerry that it was upholding the denial of his request for pension benefits. In support of its decision, the Review Committee stated that the Bayer Plan is governed by federal law, including DOMA, and that, as a result, “same-sex marriage is not recognized under the Plan.” (ERISA Review Committee Letter to Passaro, May 14, 2010).
108. Pursuant to an offer contained in that May 14, 2010 letter, Jerry requested copies of all information relevant to his claim. That material was provided to Jerry under a cover letter, dated July 21, 2010, from Bayer Senior Counsel, William M. Hassan. (Hassan Letter to Passaro, July 21, 2010).
109. The claim materials provided to Jerry indicate a single reason for the denial of pension benefits to Jerry, and that single reason is DOMA.
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110. By letter dated July 30, 2010, Vanguard provided a further response to Jerry’s June 16, 2010 written request to Vanguard seeking answers to a series of questions. Among other things, Vanguard stated,
The [Vanguard] letter dated January 27, 2010 stated that under the Defense of Marriage Act (DOMA), a plan cannot treat a participant in a same-sex marriage as “married” for purposes of the QJSA rules. This is per ERISA and the Internal Revenue Code and not a plan rule, therefore this specific information would not be found in the employee benefit plan. You can however find this information on the Department of Labor website, www.dol.gov. (Vanguard Letter to Passaro, July 30, 2010; Passaro Letter to Vanguard, June 16, 2010). 111. Under the terms of the Bayer Plan, and in compliance with applicable federal law, where a Participant, like Thomas Buckholz, who has vested and has a nonforfeitable right to benefits under the Bayer Plan, dies prior to his annuity start date, the Participant’s surviving spouse shall be paid a Preretirement Survivor Annuity. (Bayer Plan, § 5.6(a)). 112. As a result of the application of DOMA, 1 U.S.C. § 7, through ERISA and the Internal Revenue Code, Jerry has been denied the vested qualified preretirement survivor annuity (QPSA) available to all spouses of vested participants in defined benefit pension plans in the equivalent situation as Jerry finds himself today even though he is legally Tom’s surviving spouse under Connecticut law. 113. As a result of the negation of the otherwise mandated QPSA, Jerry has suffered specific, concrete and anticipated harms, financial and otherwise.
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114. At the time of Tom’s death, he was insured under the Social Security program, and he and Jerry had been living together in the same household in Milford, Connecticut.
115. Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and § 404.347, a surviving spouse is entitled to a lump-sum death payment 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.
116. On October 21, 2010, less than two years after Tom’s death in January 2009, Jerry went to his local Social Security office for the single and express purpose of applying for the lump-sum death benefit of $255.
117. At the time, it was Jerry’s understanding that there were no other Social Security widower’s benefits to which he was entitled as a surviving spouse; and, therefore, his intention was to apply for only the lump-sum death benefit.
118. At the Social Security office on October 21, 2010, Jerry was received at the front desk where he indicated that he was there to apply for the lump-sum death benefit.
119. Upon information and belief, the front desk specifically asks each visitor what they are applying for so that they can be routed to the appropriate person to deal with their application.
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120. Upon information and belief, the Social Security record associated with Jerry indicates clearly and expressly that Jerry had indicated that he wished to apply for the lump-sum death benefit.
121. Jerry then talked to a Social Security claims representative, Ms. Andrea McCalla; and she completed for him an application for what he understood to be Social Security benefits for widower’s insurance benefits, including the lump-sum death benefit of $255.
122. Although Jerry had sought to apply only for the lump-sum death benefit, he came away with the understanding that Ms. McCalla had completed for him a broad application for all potential widower’s Social Security Insurance benefits.
123. Jerry then received a document from Social Security. Social Security Document, SG-SSA-10, “Application Summary for Widow’s or Widower’s Insurance Benefits” (October 21, 2010) (“Form SG-SSA-10”).
124. Form SG-SSA-10 does not explicitly identify each and every benefit for which Jerry applied, but it does say:
I APPLY FOR ALL INSURANCE BENEFITS FOR WHICH I AM ELIGIBLE
UNDER TITLE II (FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE) AND PART A OF TITLE SVIII (HEALTH INSURANCE FOR THE AGED AND DISABLED) OF THE SOCIAL SECURITY ACT AS PRESENTLY AMENDED. (Form SG-SSA-10, p. 1). 125. Form SG-SSA-10 also states as follows: I UNDERSTAND THAT THE INFORMATION I FURNISHED ON THIS APPLICATION WILL ORDINARILY BE SUFFICIENT FOR A
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DETERMINATION ON THE LUMP SUM DEATH PAYMENT. (Form SG-SSA-10, p. 1).
126. On December 16, 2010, Jerry’s counsel learned, in the course of conferencing on a proposed joint Rule 26(F) report to the District Court, that the federal government was taking the position that Jerry had not applied for the lump-sum death benefit.
127. On January 14, 2011, Jerry again called the Social Security Administration and a representative confirmed that the notes in the system show that he had applied for the lump-sum death benefit in October 2010.
128. Jerry has and will continue to follow up with Social Security to confirm his application for the lump-sum death benefit.
129. Upon information and belief, no formal application on a Social Security form is required for the lump-sum death benefit, where as here in Jerry’s case, an application was taken from him as a surviving spouse for the full range of potential widower’s benefits, including monthly benefits. See POMS Section: RS 00210.005(A)(no application necessary for lumpsum death benefit when “eligible surviving spouse … is filing an application for monthly benefits” on deceased’s record), and referring to POMS Section: RS 00210.005B.5 (providing that “An application for monthly benefits is also an application for the LSDP [lump-sum death benefit]”)).Upon information and belief relating to the actions of the Social Security Administration (“SSA”) on applications for the lump-sum death benefit by widowers in Massachusetts seeking the benefit as the result of
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the death of their spouses of the same sex, the SSA will – solely because of the existence and operation of DOMA, 1 U.S.C. § 7 – deny Jerry’s application for the $255 death benefit otherwise available to him under 42 U.S.C. § 402(i).
130. Because the SSA does not recognize Jerry’s marriage, Jerry will certainly be denied the Social Security lump-sum death benefit and thus has suffered specific and concrete financial harm.
The Plaintiffs Lynda DeForge and Raquel Ardin 131. The Plaintiff Lynda DeForge (“Lynda”), now age 54, is and was
at all relevant times, a full-time employee of the United States Postal Service.
132. In 1977, Lynda met her spouse Raquel Ardin (“Raquel”), now age 56.
133. On September 7, 2009, after more than 30 years together, Lynda and Raquel married in their home State of Vermont in strict accordance with Vermont law. Raquel’s father, who had received legal permission to do so, performed the ceremony at their home.
134. Lynda and Raquel married because they have always been married in their hearts. They wanted to make their marriage one that others would understand as a marriage and as a commitment “forever,” including in their community, among strangers, and in the legal system.
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135. When they met, Lynda was a United States Navy Corpsman working at the Pensacola (FL) Naval Hospital. Raquel was a surgical patient in that Hospital. Raquel had fractured and dislocated her neck in 1976 while abroad in the service of the United States Navy. She had two neck fusion surgeries at the Pensacola Naval Hospital.
136. Raquel obtained a medical discharge from the Navy in 1978. After working odd jobs, she obtained work with the Postal Service and began working at a Pensacola (FL) Post Office in October 1980.
137. Lynda’s military service spanned the years of November 1976 until July 1980, when she obtained a hardship discharge so that she could travel regularly to care for her mother who was living with Alzheimer’s disease in Vermont.
138. Because the frequent travel between Florida and Vermont was difficult, and her mother’s condition had worsened, Lynda and Raquel moved to Lynda’s parents’ home in Montpelier, Vermont in October 1982. Lynda then cared for her parents on a full-time basis. Raquel obtained a transfer to the White River Junction (VT) Postal Center and supported the family.
139. After Lynda’s mother’s death in 1984, Lynda obtained a job working with disabled children in a public school, and rented an apartment with Raquel in a community halfway between their respective job sites.
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140. In June 1985, Lynda obtained a job with the White River Postal Center as well, and in August, they purchased the home in North Hartland that they still share.
141. For many years, Raquel and Lynda both worked at the same facility: the White River Junction Processing and Distribution Center in White River Junction, VT. From the beginning, their colleagues and supervisors fully acknowledged their relationship. When the couple had a Vermont Civil Union ceremony in 2000, colleagues congratulated them and even held a shower for them. They also experienced an outpouring of support when they married in 2009.
142. Lynda and Raquel have cared for both of Raquel’s parents at their apartment and later at their home in North Hartland. Raquel’s mother lived with them for nearly a year after a stroke, and much of the time was cared for by Lynda, until she was well enough to go back and live with Raquel’s father in September 1985. Since 2007, Raquel’s widowed father has made their home his base as well, although he is currently in good health.
143. Raquel worked for the Postal Service for 25 years – from 1980 until 2005. By 2005, the degenerative arthritis in her neck had resulted in an inability to move her head, unless it moved from involuntary spasms, and required intensive pain management with medications. She was forced into a disability retirement, and the Department of Veterans Affairs determined she was “unemployable.”
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144. Lynda, as Raquel’s partner and now spouse, has always taken the lead in caring for Raquel’s serious health conditions.
145. Under the FMLA, Congress provided that a covered “employer” must provide to an “eligible employee” 12 workweeks of unpaid leave in any 12-month period in order, among other things, “to care for the spouse … of the employee, if such spouse … has a serious health condition.” 29 U.S.C. § 1612(a)(1)(C). A “serious health condition” means, inter alia, an “impairment” or “physical … condition” that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).
146. The United States Postal Service is, and was at all relevant times, an employer within the meaning of Title I of the FMLA. 29 U.S.C. § 2611(4)(A)(iii-iv) (“employer”); 29 U.S.C. § 203(x) (U.S. Postal Service).
147. Since 2005, Raquel has required quarterly treatments of botox injections into her neck, three on each side of her spinal cord, to address her immobility, spasms and pain caused by degenerative arthritis and the scar tissue from her surgeries. These injections are painful and also require bandaging of her neck for bleeding.
148. The nearest VA facility at which these injections are administered is in Newington, Connecticut, a two and a half hour drive from their home in Vermont. By the time of treatments, and often well before, Raquel is unable or barely able to move her neck, making it impossible for her to drive herself to or from these appointments.
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149. Lynda has always transported Raquel to and from her quarterly injection appointments in Connecticut, including such appointments subsequent to their marriage.
150. Lynda is, and was at the time of her spouse’s neck injections from September 2009 forward, an eligible employee under the terms of Title I of the FMLA.
151. Lynda did not apply for FMLA leave for the first three injection appointments after their marriage, believing she would be denied leave to care for her spouse.
152. However, Lynda did apply for FMLA leave on May 7, 2010. Pursuant to Raquel’s physician’s direction, she sought “one day every three months” for “treatment for medical condition due to fracture dislocation of C6 and 7” and explained that “patient requires transportation to and from VA Medical Center in Newington Ct. for Botox injections.” (APWU Form 2, dated May 7, 2010). That same form contained a signed certification of Raquel’s physician.
153. With respect to a request for FMLA leave to care for a spouse, Lynda satisfied all the operative requirements for leave under the terms of the FMLA and the Department of Labor regulations.
154. Lynda’s supervisors accepted her FMLA leave request, and then, per standard procedures, sent it for further approval to the district supervisor overseeing their facility.
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155. The FMLA request was rejected, stating that “the FMLA does not apply to your leave request.” A notation was made on the form further explaining: “Please be advised that your FMLA request is not approved, as same sex marriage is not recognized by Federal Law under the Defense of Marriage Act.” (Form WH-382, dated May 13, 2010).
156. Raquel was scheduled to have knee surgery on June 3, 2010, and did so. Since Lynda had recently received a denial of FMLA leave to care for Raquel based upon DOMA, 1 U.S.C. § 7, she believed it was futile to apply again to take FMLA leave for Raquel’s knee surgery and, therefore, took vacation days to care for Raquel.
157. Early next year, Raquel will undergo bariatric surgery, requiring 2-4 days of hospitalization and one week of an intense convalescence immediately when she returns home. Based on the denial of FMLA leave by the Post Office in May 2010, Lynda believes it is futile to apply again.
158. As a result of the United States Postal Service’s application of DOMA, 1 U.S.C. § 7, Lynda has been unable to take FMLA leave.
159. Only the operation of DOMA, 1 U.S.C. § 7, has precluded Lynda from obtaining FMLA leave to care for Raquel vis a vis Raquel’s past injection appointments and knee surgery as well as Raquel’s upcoming surgery.
160. Lynda has made sure to be there for Raquel and take care of her no matter what. Without FMLA coverage, Lynda has to take annual
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leave/vacation days in order to get time off. However, if Lynda were allowed to take FMLA leave to care for Raquel, she would have the choice of “unpaid leave,” use of accrued sick leave or annual leave, i.e., vacation pay.
161. Lynda anticipates having her own knee surgery in the Spring of 2011. Right now, she has not accrued enough sick and vacation time to ensure that she is paid for all or nearly all of that time off, in part because she has to take vacation time to care for Raquel.
162. Lynda would prefer to take a few unpaid days occasionally as necessary to care for Raquel, as she would be permitted to do with FMLA leave. However, because she must take vacation time to care for Raquel, she runs the risk that she will not have enough accrued sick and vacation time when she has her own major surgery, and thus go for a significant period without any pay.
163. As an employee of the United States Postal Service, Lynda is enrolled in the Federal Employees Health Benefits Program (“FEHB”).
164. As a former employee and qualified annuitant of the United States Postal Service, Raquel is also enrolled in the FEHB.
165. To date, both Lynda and Raquel have each been separately enrolled in FEHB under two “Self-Only” plans, covering, as the name suggests, each of them as an individual.
166. According to the FEHB Handbook, “Self and Family” enrollment is described as follows:
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Self and Family
A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.
You may enroll for self and family coverage before you have any eligible family members. Then, a new eligible family member (such as a newborn child or a new spouse) will be automatically covered by your family enrollment from the date he/she becomes a family member. When a new family member is added to your existing self and family enrollment, you do not have to complete a new SF 2809 or other appropriate request, but your carrier may ask you for information about your new family member. You will send the requested information directly to the carrier. Exception: if you want to add a foster child to your coverage, you must provide eligibility information to your employing office.
FEHB Handbook, Enrollment, Types of Enrollment (emphasis supplied).
167. According to 5 U.S.C. § 8901(5), “member of family” is defined,
in part, to “mean[] the spouse of an employee or annuitant and an
unmarried child,” provided the child meets an age limit.
168. Because the cost of their two Self-Only plans – one as a retiree
and one as an employee – exceeds the cost of one Self and Family plan
covering both of them, Lynda and Raquel seek to change from “Self-Only”
coverage to “Self and Family.”
169. Lynda sought to change her enrollment from Self-Only to the
FEHB Self and Family Plan on November 8, 2010, during the open
enrollment period that commenced on that day, through the PostalEASE
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system on her home computer, using her employee identification number and unique pin number.
170. On a screen called “Federal Employee Health Benefits” discussing “Family Member Eligibility,” three bullet points of information were provided. The first bullet point notes that FEHB regulations define family members as “Your spouse…” The third bullet point, however, states, “Same sex spouses are not considered eligible family members under FEHB.”
171. Lynda persisted in trying to enroll in a Self and Family Plan despite the explicit statement that “same-sex spouses” are not “eligible family members.”
172. When Lynda attempted to add Raquel as her spouse for health insurance, the system returned a message indicating that her transaction had successfully been recorded and providing Lynda with a confirmation number of 781192. It also indicated that the transaction would be processed on December 14, 2010 at 5:00 p.m. Central Time.
173. Lynda then spoke with Blue Cross and Blue Shield Customer Service, which said there would be no coverage and referred Lynda back to Shared Services. Lynda then called Shared Services and spoke to a Michelle, who put Lynda on hold, called OPM and then reported to Lynda that “FEHB does not accept or approve family plans for same-sex marriages.”
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174. As a result of the United States Postal Service’s application of DOMA, 1 U.S.C. § 7, Lynda is prohibited from covering herself and Raquel under a FEHB “Self and Family” plan.
175. As a result of DOMA, 1 U.S.C. § 7, their marriage is being treated as invalid by the federal government, and the denials of FMLA leave and family health insurance have caused Lynda and Raquel specific and concrete financial harms.
Plaintiffs Joanne Marquis and Janet Geller 176. Plaintiff Joanne Marquis (“Jo”), 70 years old, is a retired New
Hampshire employee, having worked as a teacher in the New Hampshire public school systems for over 30 years.
177. Jo and her spouse, Plaintiff Janet Geller (“Jan”), have been in a committed relationship since 1979.
178. Jan, 64 years old, is also a retired New Hampshire employee, having also worked as a teacher in the New Hampshire schools for over 25 years.
179. In 1980, Jo and Jan bought a house in Goffstown, New Hampshire, where they lived for 29 years along with a series of rescue dogs that they adopted. They recently sold their house to rent a smaller home in their retirement years. They also began spending their winters in a retirement community in Florida four years ago.
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180. After 31 years together, on their anniversary, Jan proposed to Jo while at a dance in their retirement community in Florida, in front of their close neighbors and friends.
181. Jo and Jan married in their home in Goffstown on May 3, 2010. They had a small and simple ceremony that was officiated by their town clerk, one of Jan’s former high school students, and witnessed by their close friends. Jo and Jan decided to get married soon after it was possible to do so in New Hampshire so that they could finally protect each other legally after their many years of commitment to each other.
182. In 2004, Jan retired after a total of over 25 years of teaching. 183. In 2005, Jo retired from the Manchester School District after a total of 43 years of teaching. 184. As qualified state retirees, Jo and Jan both receive a pension through the New Hampshire Retirement System (“NHRS”). 185. The NHRS provides and administers a medical cost benefit that can be used to purchase health insurance for a qualified retiree and his or her spouse or dependent. N.H.R.S. § 100-A:52-a. This medical cost benefit, while administered by New Hampshire, is part of a “401(h) subtrust” of the NHRS, as established by the federal Internal Revenue Code. See N.H.R.S. § 100-A:53-c. 186. Generally speaking, a pension plan, such as the NHRS, that is qualified under I.R.C. § 401(a) is not permitted to provide medical benefits
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without losing its tax-qualified status. 26 U.S.C. § 401; 26 C.F.R. § 1.4011(b)(1)(i).
187. The only exception is a pension plan that provides medical benefits pursuant to I.R.C. § 401(h), which permits a tax-qualified pension plan to provide for the payment of benefits for medical expenses of retired employees, their spouses and their dependents, provided that certain conditions are met. I.R.C. § 401(h) provides in relevant part that “a pension or annuity plan may provide for the payment of benefits for sickness, accident, hospitalization and medical expenses of retired employees, their spouses and their dependents . . . .” 26 U.S.C. § 401(h); see also 26 C.F.R. § 1.401-14.
188. DOMA, 1 U.S.C. § 7, defines “spouse” for purposes of IRC § 401(h).
189. As a state retiree of New Hampshire with over 30 years of service, Jo is eligible for this medical cost benefit. N.H.R.S. § 100-A:52-a. In June 2005, she applied for and received this benefit as an individual to help pay for her own Medicare Part B supplemental insurance premium.
190. Just a week after marrying Jan in New Hampshire, Jo applied for the medical cost spousal benefit for Jan on May 11, 2010 through her benefits coordinator at the Manchester School District, who processed her application with the NHRS. The medical cost spousal benefit for Jan was set at $375.56.
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191. A week later, the benefits coordinator called Jo to inform her that the NHRS had denied her the medical cost benefit for Jan, because, due to DOMA, 1 U.S.C. § 7, the spousal benefit was available to heterosexual married couples only.
192. On September 27, 2010, Jo received a letter from Denise M. Call, Director of the NHRS Employer Services, confirming NHRS’s denial of the medical cost spousal benefit for Jan. As her reason, Ms. Call stated in her letter that “because of DOMA the term ‘spouses’ as used in Code Section 401(h) does not include a civil union partner or a same-sex spouse. Therefore, if NHRS were to provide a medical subsidy on behalf of a retiree’s civil union partner or same-sex spouse, NHRS would fail to satisfy Code Section 401(h). Paying a medical subsidy other than in accordance with the terms of Code Section 401(h) would cause NHRS to lose its tax qualified status.”
193. In addition, New Hampshire law states that nothing in New Hampshire’s domestic relationships law, including New Hampshire’s licensing and recognition of marriages of same-sex couples, shall apply to the statutes governing the NHRS “to the extent that such application will violate the Internal Revenue Code of 1986, as amended, or other federal law.” N.H.R.S. § 100-A:2-b.
194. Jan is not eligible for the medical cost benefit through the NHRS based upon her own years of service.
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195. Jan also does not qualify as a dependent of Jo’s, as defined by 26 C.F.R. § 1.401-14(b)(4)(i), such as to be otherwise eligible for Jo’s medical cost benefit.
196. Jan is currently paying $650.60 per month for private group health insurance coverage through Jo’s former employer, the Manchester School District.
197. But for DOMA, 1 U.S.C. § 7, the NHRS, under New Hampshire law, would be providing Jo with the medical cost spousal benefit to help pay for Jan’s private health insurance premium.
198. As a result of this denial, Jo and Jan are being denied $375.56 per month to help pay for Jan’s health insurance premium costs.
199. Jo and Jan are suffering $375.56 per month in financial harm since July 2010 from the discriminatory denial of the medial cost benefit for Jan. That results in a financial harm of slightly more than $4,500 per year as a result of DOMA, 1 U.S.C. § 7.
Plaintiffs Suzanne & Geraldine Artis 200. Plaintiff Suzanne Artis (“Suzanne”), now age 39, is a public
school librarian. 201. Plaintiff Geraldine Artis (“Geraldine”), now age 41, is studying
for a degree in counseling. She began working for the Connecticut State Department of Disability Services as a recreation therapist in 1993.
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202. Suzanne and Geraldine have shared a committed partnership for 16 years. They lived together in West Hartford for nearly a year before moving to Middletown in 1995. They jointly purchased a home in Middletown in 1997, and as their family grew, they purchased a larger home in 2001.
203. In 1996, Geraldine and Suzanne were recognized as Domestic Partners by the City of Hartford. Later that same year, Suzanne changed her last name to “Artis” to reflect her commitment to Geraldine and the familial nature of their relationship.
204. After careful consideration and with much joy, Geraldine and Suzanne brought children into their lives. Their eldest son, G.R., was born in 1997 and is now 13. Their 11-year-old twins, Z and G.Z., were born in 1999. Each child’s name is drawn from the letters of their parents’ first names.
205. Over the years, Geraldine and Suzanne have juggled their work schedules in order to be able to teach their children at home. Their oldest son, G.R., recently started attending a middle school. They continue to teach their twins, Z and G.Z., at home. All three children complete work far above their grade level.
206. In 2005, Geraldine and Suzanne moved their family from Middletown to Clinton, Connecticut to be closer to Suzanne’s mother. In late 2010, they moved into a new home in Clinton that afforded more space and a yard for their children to play in.
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207. On July 11, 2009, Geraldine and Suzanne were married under Connecticut law. In the presence of family and friends, Suzanne and Geraldine walked a wedding labyrinth and dedicated a song and poem to one another as symbols of their love. Their sons stood beside them as ring bearers and ceremonial broom bearer and proudly watched their parents “jump the broom.” Getting married was an opportunity for them to commit to a future together and to ensure that they could protect their children and each other.
208. Despite their status as legally married, Geraldine and Suzanne did not file their annual federal income tax return as Married Filing Jointly because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7. Instead, DOMA required that they file two separate 2009 federal returns as if they were unmarried. Following DOMA, Suzanne’s original 2009 federal return filing status was Head of Household and Geraldine’s was Single.
209. As a result, for the 2009 tax year, Geraldine and Suzanne were deprived of a tax refund of $1,465 attributable to refundable credits which they would have received had they been permitted to file as a married couple with a Married Filing Jointly filing status.
210. After they timely filed their separate, original 2009 federal income tax returns, Suzanne and Geraldine each submitted first amended federal income tax returns for 2009 on IRS Form 1040X, to correct errors made by their tax preparer.
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211. Then, on November 24, 2010, Suzanne and Geraldine filed a
second amended federal income tax return for the 2009 tax year, changing
their filing status to Married Filing Jointly. The second amended return
claimed a refund of $1,465.
212. Suzanne and Geraldine’s second amended 2009 federal
income tax return attached a written statement titled “Explanation of
Changes,” a Form 8275 Disclosure Statement and a Form 8275-R,
Regulation Disclosure Statement, in order to explain the grounds for their
refund claim and the differences from their first amended federal income
tax returns, and to avoid any penalties. The Explanation of Changes
states:
REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE “DEFENSE OF MARRIAGE ACT”
The taxpayer, Suzanne Artis (###-##-####), a spouse in a same-sex couple, was married under the laws of the (sic) Connecticut as of December 31, 2009. … [I]n accordance with the federal law known as the Defense of Marriage Act (“DOMA”), the taxpayer filed an individual, federal income tax return as though she were unmarried. The taxpayer believes that being required to file as though she were unmarried amounts to unequal treatment compared to other married persons in Connecticut. The taxpayer believes that her marriage, which is valid under Connecticut law, should be respected for federal tax purposes, just like the Connecticut marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes DOMA is unconstitutional and that she should be allowed to file this amended joint return with her spouse and receive the refund shown herein. The taxpayer’s filing position is supported by the following decisions from the U.S. District Court – District of Massachusetts: Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) and
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Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010). The decisions in these cases, which found section 3 of DOMA to be unconstitutional, have been stayed pending the government’s appeals to the U.S. Court of Appeals in the First Circuit.
In particular, if the taxpayer were able to file as married filing jointly, the federal tax refund increases from $234 to $1,699 because the aggregate tax decreases by $1,465. As a result of these adjustments, the taxpayers are due a refund of this $1,465 difference.
213. Geraldine and Suzanne received a certified, return receipt from
the U.S. Postal Service confirming that the IRS received their second
amended 2009 federal income tax return and refund claim on December 1,
2010.
214. On December 23, 2010, by certified mail, Suzanne and
Geraldine requested an immediate denial of their refund claim. The letter
stated that whereas their “refund claim is based on a Constitutional
challenge to a federal statute, the taxpayers request that their refund claim
be immediately rejected and that a notice of claim disallowance be issued
promptly pursuant to Internal Revenue News Release IR-1600 (April 26,
1976).”
215. Internal Revenue News Release IR-1600 (April 26, 1976), 9
Stand. Fed. Tax Rep. (CCH) ¶ 6609 (1976), provides as follows:
Taxpayers filing claims for refund of contested income, estate or gift taxes may choose to move their cases to the courts faster by using a special procedure. If they do not wish to pursue an appeal within the IRS, they should request in writing that the claim be immediately rejected. A notice of claim disallowance will then be promptly sent to the taxpayer. This special procedure
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applies to Forms 1040X, 1120X or other claims for refund. See also Internal Revenue Manual 4512(2)(g) (Jan. 30, 1987); IRS Pub. 556, pg. 15 (Rev. May 2008). 216. To date, Geraldine and Suzanne have not received any decision from the IRS regarding their 2009 second amended federal income tax return and claim for refund. 217. The IRS has the power to deny Geraldine and Suzanne’s 2009 second amended federal income tax return and claim at any time pursuant to DOMA, 1 U.S.C. § 7. The IRS denied amended federal income tax returns and claims for refunds filed by similarly-situated, Massachusetts same-sex married couples also seeking to be treated as married in another case, Gill v. Office of Personal Management, First Amended Complaint, 1:09-cv-10309 (D. Mass. July 31, 2009) (currently on appeal at the First Circuit). 218. Even if the IRS does not issue a decision regarding Geraldine and Suzanne’s 2009 second amended federal income tax return and claim for refund, such tax return and claim for refund will be deemed denied after six months of filing, and Geraldine and Suzanne will have the statutory right to sue based upon such denial. 26 U.S.C § 6532(a)(1). 219. As a result of the certain, yet currently pending IRS disallowance, and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Geraldine and Suzanne have suffered specific and concrete financial harm to themselves and to their household. Specifically, in the 2009 tax year Geraldine and Suzanne were deprived of an IRS refund of
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$1,465 attributable to federal refundable credits, which a similarly situated opposite-sex married couple would have received for that same tax year.
220. The money that Geraldine and Suzanne were denied because of DOMA, 1 U.S.C. § 7, could have gone toward household expenses and extracurricular activities associated with raising three growing children.
221. Moreover, the specific and concrete financial harm to Geraldine and Suzanne’s household continues to grow with each additional year that DOMA, 1 U.S.C. § 7, bars the IRS from recognizing them as a married couple entitled to file their federal income tax returns as Married Filing Jointly.
Bradley Kleinerman and James Flint Gehre 222. Plaintiffs Bradley Kleinerman (“Brad”) and James “Flint”
Gehre (“Flint”) are a same-sex couple married under Connecticut law and currently live in Avon, Connecticut.
223. Brad is a human resources director at CIGNA Healthcare, located in Bloomfield, Connecticut.
224. Flint is currently a stay-at-home parent who has helped take care of their three sons – ages 19, 18 and 9 – the oldest having recently left home for college.
225. Brad and Flint met in California in 1991. Flint was a police officer, and Brad was working as a human resources manager.
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Commitment came naturally to both of them, and soon after they met, they moved in together and began talking about raising children.
226. In 1997, Brad and Flint adopted the first two of their children, who at the time were 5 and 6 years old and had been living in a foster home in Los Angeles.
227. Shortly after adopting their two boys, Brad and Flint executed all of the legal documents they could to protect their family and children – including wills, trusts, powers of attorney, and health care proxies. They also entered into a registered domestic partnership under California law in 2001.
228. Although they had not planned on adopting any more children, in 2001, when they were approached by an attorney with the Los Angeles foster care system about adopting the six-week old biological sibling of their two adopted sons, they leapt at the opportunity.
229. In 2007, Brad and Flint moved their family to Connecticut because they hoped it would provide a better quality of life for their family. They chose to live in Avon for its respected school system and familyoriented community.
230. Brad works and financially supports the family; Flint has become active within the community and the children’s schools – including managing their youngest son’s traveling hockey team.
231. Brad and Flint have been a devoted couple for almost 20 years, since 1991.
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232. On March 6, 2009, on their 18th anniversary, Brad and Flint were married in strict and complete accordance with Connecticut law, in front of their family.
233. Despite their status as legally married, Brad and Flint did not file their 2009 federal income tax returns as Married Filing Jointly because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7.
234. Instead, because of DOMA, 1 U.S.C. § 7, Brad filed an original and then a first amended 2009 federal income tax return using the Head of Household filing status. The first amended federal income tax return was filed to correct the original return’s unintentional omission of certain 1099R income. Flint had no income in 2009 and thus was not required to file a federal income tax return.
235. For the tax year 2009, Brad and Flint paid $2,085 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
236. On November 23, 2010, Brad and Flint submitted to the IRS a second amended federal income tax return for the tax year 2009, changing their filing status from Brad filing alone as Head of Household to Brad and Flint filing together as Married Filing Jointly. The 2009 second amended federal income tax return claimed a refund of $2,085.
237. Brad and Flint’s second amended 2009 federal income tax return attached a written statement titled “Explanation of Changes,” a Form
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8275 Disclosure Statement and a Form 8275-R, Regulation Disclosure
Statement, which explained the grounds for their refund claim and the
differences from the first amended income tax return, and to avoid any
penalties. The Explanation of Changes states:
REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE “DEFENSE OF MARRIAGE ACT”
The taxpayer, Bradley Kleinerman (###-##-####), a spouse in a same-sex couple, was married under the laws of the Connecticut as of December 31, 2009. For the tax year of this amended return, the taxpayer filed a joint Connecticut income tax return with his spouse, James Gehre (###-######). However, in accordance with the federal law known as the Defense of Marriage Act (“DOMA”), the taxpayer filed an individual, federal income tax return as though he were unmarried. The taxpayer believes that being required to file as though he were unmarried amounts to unequal treatment compared to other married persons in Connecticut. The taxpayer believes that his marriage, which is valid under Connecticut law, should be respected for federal tax purposes, just like the Connecticut marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that he should be allowed to file this amended joint return with his spouse and receive the refund shown herein. The taxpayer’s filing position is supported by the following decisions from the U.S. District Court-District of Massachusetts: Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) and Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010). The decisions in these cases, which found Section 3 of DOMA to be unconstitutional, have been stayed pending the government’s appeals to the U.S. Court of Appeals in the First Circuit.
In particular, if the taxpayer were able to file as Married Filing Jointly, the federal tax decreases from $2,947 to $862. As a result of these adjustments, the amount of overpayment is $2,085.
238. Brad and Flint received a certified, return receipt from the U.S.
Postal Service confirming that the IRS received their 2009 second amended
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federal income tax return and accompanying refund claim on December 1, 2010.
239. On December 23, 2010, by certified mail, Brad and Flint requested an immediate denial of their refund claim. The letter stated that whereas their “refund claim is based on a Constitutional challenge to a federal statute, the taxpayers request that their refund claim be immediately rejected and that a notice of claim disallowance be issued promptly pursuant to Internal Revenue News Release IR-1600 (April 26, 1976).”
240. Internal Revenue News Release IR-1600 (April 26, 1976), 9 Stand. Fed. Tax Rep. (CCH) ¶ 6609 (1976), provides as follows:
Taxpayers filing claims for refund of contested income, estate or gift taxes may choose to move their cases to the courts faster by using a special procedure. If they do not wish to pursue an appeal within the IRS, they should request in writing that the claim be immediately rejected. A notice of claim disallowance will then be promptly sent to the taxpayer. This special procedure applies to Forms 1040X, 1120X or other claims for refund. See also Internal Revenue Manual 4512(2)(g) (Jan. 30, 1987); IRS Pub. 556, pg. 15 (Rev. May 2008). 241. To date, Brad and Flint have not received any decision from the IRS regarding their 2009 second amended federal income tax return and claim for refund. 242. The IRS has the power to deny Brad and Flint’s 2009 second amended federal income tax return and claim at any time pursuant to DOMA, 1 U.S.C. § 7. The IRS denied amended federal income tax returns
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and claims for refunds filed by similarly-situated, Massachusetts same-sex married couples also seeking to be treated as married in another case, Gill v. Office of Personal Management, First Amended Complaint, 1:09-cv-10309 (D. Mass. July 31, 2009) (currently on appeal at the First Circuit).
243. Even if the IRS does not issue a decision regarding Brad and Flint’s 2009 second amended federal income tax return and claim for refund, such tax return and claim for refund will be deemed denied after six months of filing (that is, absolutely no later than June 1, 2011) and Brad and Flint will have the statutory right to sue based upon such denial. 26 U.S.C. § 6532(a)(1).
244. As a result of the certain, yet currently pending IRS disallowance, and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Brad and Flint have suffered specific and concrete financial harm to themselves and to their household. Specifically, for the 2009 tax year, Brad and Flint were forced to pay $2,085 more in federal income taxes than a similarly situated opposite-sex married couple would have paid.
245. The additional money Brad and Flint had to pay in federal income taxes because of DOMA, 1 U.S.C. § 7, could have gone toward savings for their children’s college education or household expenses.
246. Moreover, the specific and concrete financial harm to Brad’s and Flint’s household continues to grow with each additional year that DOMA, 1 U.S.C. § 7, bars the IRS from recognizing them as a married
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couple entitled to file their federal income tax returns as Married Filing Jointly.
Plaintiffs Damon Savoy and John Weiss 247. Plaintiff Damon Savoy (“Jerry”), now age 47, has been a
federal government employee for over 20 years. Since 1992, he has served as a government attorney for the Office of the Comptroller of the Currency (“OCC”), a self-funded bureau of the United States Treasury. Mr. Savoy now works at an OCC Office in New York City.
248. Jerry met his spouse, Plaintiff John Weiss (“John”), now age 41, in August 1998. Jerry and John have been in a committed relationship for 12 years.
249. In February 2008, Jerry and John bought a home and moved to Danbury, Connecticut in anticipation of expanding their family by adopting children. Jerry and John decided to become parents because they had room in their hearts and lives for children.
250. In November 2008, Jerry and John contacted the Connecticut Department of Children and Families and soon after began the process of becoming licensed as adoptive parents. As part of this process, in March 2009, John had a physical examination that revealed he suffers from Type II Diabetes.
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251. John worked as an interior designer until he was laid off in May 2009. After being laid off, John received his health insurance through COBRA continuation health coverage.
252. In August 2009, Jerry and John welcomed three siblings into their family as foster children. John is the primary caretaker for their three children and stays home to care for the children full-time. Jerry and John’s children’s adoptions became final on December 28, 2010. The children are now ages 11, 10, and 2.
253. Before the children joined their family, Jerry had been enrolled in the Federal Employees Health Benefits Program (“FEHB”) under a “Self Only” plan, covering, as the name suggests, himself only.
254. After the children were placed with Jerry and John as foster children, Jerry changed his FEHB enrollment from a “Self Only” plan to a “Self and Family” plan, covering himself and the three children.
255. In July 2010, John’s COBRA continuation health coverage terminated for administrative reasons. He was uninsured for several months because he had difficulty securing new health insurance coverage due to his pre-existing condition, diabetes.
256. On October 9, 2010, Jerry and John were married in strict and complete accordance with Connecticut law. They married because they wanted to provide the security and legal protections of a married family for their children.
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257. Jerry contacted his employer’s human resources department’s
open season information line on November 22, 2010, and was told that to
add his spouse to his existing FEHB “Self and Family” plan he need only
contact his insurance company.
258. According to the FEHB Handbook, “Self and Family”
enrollment is described as follows:
Self and Family
A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.
You may enroll for self and family coverage before you have any eligible family members. Then, a new eligible family member (such as a newborn child or a new spouse) will be automatically covered by your family enrollment from the date he/she becomes a family member. When a new family member is added to your existing self and family enrollment, you do not have to complete a new SF 2809 or other appropriate request, but your carrier may ask you for information about your new family member. You will send the requested information directly to the carrier. Exception: if you want to add a foster child to your coverage, you must provide eligibility information to your employing office.
FEHB Handbook, Enrollment, Types of Enrollment (emphasis supplied).
259. According to 5 U.S.C. § 8901(5), “member of family” is defined,
in part, to “mean[] the spouse of an employee or annuitant and an
unmarried child,” provided the child meets an age limit, “including – a []
foster child but only if the child lives with the employee [] in a regular
parent-child relationship.”
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260. Jerry sought to add his spouse John to his existing FEHB Self and Family Plan on November 22, 2010, by calling his insurance company, Anthem Blue Cross Blue Shield. Jerry spoke with Chris T. at Anthem Blue Cross Blue Shield who informed Jerry that federal law precludes him from adding his same-sex spouse to his existing FEHB Self and Family Plan (Anthem Blue Cross Blue Shield Inquiry Reference # 10326011632963).
261. In December 2010, after several months of being uninsured, John enrolled in an individual private health insurance plan through Anthem Blue Cross Blue Shield. The cost of John’s individual private health insurance plan is $449.08 per month.
262. Jerry’s federal employer, the Office of the Comptroller of the Currency (“OCC”), provides its employees who have domestic partners with a health insurance subsidy to cover part of the cost of private health insurance for their domestic partners.
263. OCC will pay a portion of John’s monthly premium for his individual private health insurance plan by reimbursing Jerry on a quarterly basis. OCC will pay 72% of John’s premium up to a maximum of $330 per month in 2010 and $345 per month in 2011. Jerry filed his first reimbursement claim to OCC for a portion of John’s monthly premium for his individual private health insurance plan on or about January 3, 2011.
264. OCC’s reimbursement for a portion of John’s premium for his individual private health insurance plan is considered income to Jerry. Therefore, taxes are withheld from Jerry’s reimbursement. A federal
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employer’s contribution to the health insurance premium for an oppositesex spouse is not considered imputed income and is not taxed.
265. But for DOMA, 1 U.S.C. § 7, Jerry would be able to enroll his spouse John on his existing FEHB Self and Family Plan. As a result of this denial and the taxes on the imputed income for domestic partner insurance, John and Jerry are paying approximately an additional $217 a month for John’s health insurance premium.
266. Jerry’s and John’s family would be more secure if Jerry could add John to the “Self and Family” plan that they are already purchasing. Paying for an individual plan for John in addition to paying for a family plan for the rest of the family is a burdensome extra monthly expense for a family raising three young children. In addition, if John’s coverage under his individual plan is interrupted in the future, the fact that Jerry is unable to add John to his existing “Self and Family” plan and the fact that John now has a pre-existing diagnosis increase the risk that the primary caregiver for their children could again find himself without health insurance coverage.
267. Because of DOMA, 1 U.S.C. § 7, the federal government is paying approximately an additional $232 per month for John’s health insurance premium costs because DOMA prevents Jerry from adding his spouse to his existing Self and Family FEHB plan.
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COUNT I (Joanne Pedersen and Ann Meitzen v. Office of Personnel Management)
268. Plaintiffs Joanne Pedersen and Ann Meitzen repeat and reallege the allegations set forth in Paragraphs 14-15, 27, 37-72 and 73-90 as if fully set forth herein.
269. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.
270. Pursuant to Congressional authority, 5 U.S.C. § 8913, OPM prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.
271. The pertinent regulations promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations.
272. The FEHB Program extends to qualified annuitants such as the Plaintiff Joanne Pedersen. See 5 U.S.C. §§ 8901, 8905.
273. Under existing FEHB statutory and regulatory provisions, a qualified annuitant may elect “Self and Family” coverage and enroll her spouse for health insurance benefits under the FEHB program.
274. Under existing FEHB statutory and regulatory provisions, Joanne would be able to enroll Ann in a “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a retired federal employee’s spouse if that spouse is of the same sex.
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275. Under existing FEHB statutory and regulatory provisions, Ann would be enrolled in Joanne’s “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a retired federal employee’s spouse if that spouse is of the same sex.
276. To the extent that the disparity of treatment with regard to federal employment-related benefits available to Joanne and Ann is, in fact, mandated by DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
277. An actual controversy exists between and among the parties. COUNT II
(Gerald V. Passaro II v. Timothy F. Geithner, Hilda L. Solis and Michael J. Astrue)
278. Plaintiff Gerald V. Passaro II repeats and realleges the allegations set forth in Paragraphs 16, 28-30, 37-72, and 91-130 as if fully set forth herein.
279. The Bayer Pension Plan in which Thomas Buckholz was a vested Participant as of December 31, 2005, is a defined benefit plan that intended to and does qualify under Section 401(a) of the Internal Revenue Code, 26 U.S.C. § 401(a).
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280. As a qualified defined benefit plan, the Bayer Plan is obligated to provide: (a) in the case of a vested participant who does not die before the annuity starting date, the accrued benefit payable to such participant in the form of a qualified joint and survivor annuity; and (b) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified survivor annuity to the surviving spouse of the participant. 29 U.S.C. §§ 1055(a) and (b)(1)(A); 26 U.S.C. § 401(a)(11).
281. Definitions of “qualified joint and survivor annuity” and “qualified preretirement survivor annuity” are set forth in 29 U.S.C. §§ 1055(d)(1) and (e), respectively, and 26 U.S.C. §§ 417(b) and (c), respectively. See also 26 C.F.R. § 1.401(a)-11 (“Qualified joint and survivor annuities”).
282. Both the Secretary of Labor and the Secretary of the Treasury, in their official capacities, are responsible for the enforcement and administration of ERISA.
283. The Secretary of the Treasury, in consultation with the Secretary of Labor, is authorized to promulgate regulations concerning the requirements of joint and survivor annuities and preretirement survivor annuities. 29 U.S.C. § 1055(l).
284. In accordance with federal law, the Bayer Plan offers a Preretirement Survivor Annuity to a Participant with a vested, nonforfeitable right to an accrued benefit in the form of an annuity payable to the Participant’s surviving spouse in an amount “equal [to] the amounts
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which would have been payable as a survivor annuity under the Qualified Joint and Survivor Annuity under the Plan ….” (Bayer Plan, §§ 5.6(a)-(b)).
285. Under the Bayer Plan, the Qualified Joint and Survivor Annuity “shall be 50% of the amount of the annuity which is payable during the joint lives of the Participant and the spouse.” (Bayer Plan, § 6.1(d)).
286. As a person legally married under Connecticut law at the time of his spouse’s death, Jerry would be declared, as a matter of right under the Bayer Plan, a recipient of a preretirement survivor annuity but for DOMA, 1 U.S.C. § 7, which precludes a qualified defined benefit plan from extending the statutorily required ERISA survivor annuities to the surviving spouse of a married same-sex couple.
287. Solely as a result of the application of DOMA, 1 U.S.C. § 7, Jerry finds himself without any right as a surviving spouse to any survivor annuity whatsoever under the Bayer Plan.
288. Jerry has therefore, by definition, been denied equal treatment as compared to other similarly situated widowers; and he is required to currently live without the assurance of the QPSA and thus with the attendant and enhanced risks and anxieties concerning his future financial welfare.
289. The operation of DOMA, 1 U.S.C. § 7, is the cause of this present harm to Jerry.
290. DOMA, 1 U.S.C. § 7, creates a classification with respect to qualified defined benefit plans that treats similarly situated individuals
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differently without justification in excess of Congressional authority in violation of the rights of equal protection secured by the Fifth Amendment of the Constitution of the United States.
291. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq.
292. Pursuant to Congressional authority, 42 U.S.C. § 902, defendant Michael J. Astrue enforces federal law relative to eligibility of benefits through his supervision of the SSA.
293. The pertinent regulations promulgated by the SSA are contained in Parts 400 to 499 of Title 20 of the Code of Federal Regulations.
294. Under 42 U.S.C. § 402(i), the widower of a deceased person shall receive a lump-sum benefit of $255 after the death of his spouse.
295. Under existing Social Security statutory and regulatory provisions, Jerry would be entitled to the $255 lump-sum death benefit as the legal surviving spouse of Thomas Buckholz but for DOMA, 1 U.S.C. § 7, which denies the benefit to an otherwise qualifying surviving spouse if that spouse is of the same sex.
296. DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
297. Jerry’s constitutional claims are ripe for review by this Court.
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298. Jerry’s application for the lump-sum death benefit raises no disputed issues of fact.
299. DOMA, 1 U.S.C. § 7, alone bars Jerry from receiving the lumpsum death benefit.
300. It would be futile for Jerry to pursue any further administrative process because the SSA has consistently taken the position that DOMA, 1 U.S.C. § 7, is its sole basis for barring surviving spouses of same-sex couples, including in equivalent litigation now on appeal in the District of Massachusetts, from receiving the lump-sum death benefit. In addition, Jerry’s claim raises a constitutional issue that is beyond the SSA’s purview.
301. An actual controversy exists between and among the parties. COUNT III
(Lynda DeForge and Raquel Ardin v. United States Postal Service, John E. Potter and Office of Personnel Management)
302. Plaintiffs Lynda DeForge and Raquel Ardin repeat and reallege the allegations set forth in Paragraphs 17-18, 27, 31-32, 37-72 and 131-175 as if fully set forth herein.
303. Congress enacted the FMLA in 1993 relying on “its Article I commerce power and its power under § 5 of the Fourteenth Amendment to enforce that Amendment’s guarantees.” Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 726-727 and n.1 (2002).
304. Congress expressly set forth its purposes in adopting the FMLA: (a) to balance workplace and family needs; (b) to promote the
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preservation of family integrity; (c) to create reasonable leave for employees so that, among other reasons, they can care for a spouse with a serious health condition; (d) to accomplish the foregoing with employer interests in mind; (e) to also accomplish the foregoing on a gender-neutral basis in order to minimize sex discrimination in employment; and (f) to promote equal employment opportunity for men and women. See 29 U.S.C. § 2601(b).
305. The term “spouse” was specifically defined in the FMLA to mean “a husband or wife as the case may be.” 29 U.S.C. § 1611(13).
306. The Department of Labor regulations governing Title I of the FMLA provide: “Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 C.F.R. § 825.113(a).
307. The official House Report on DOMA specifically cites FMLA as one of two examples by which married gay and lesbian couples could become “eligible for a whole range of federal rights and benefits.” (H. Rpt., pp. 10-11).
308. DOMA, 1 U.S.C. § 7, has overridden and superseded the definition of “spouse” contained in the FMLA in 29 U.S.C. § 2611(13) as well as the definition of “spouse” contained in the Department of Labor regulations in 29 C.F.R. § 825.113(a).
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309. At all relevant times, the Postal Service is an employer subject to the FMLA and Lynda was an employee-spouse eligible for leave to care for her spouse.
310. Under the existing FMLA statutory and regulatory provisions, Lynda would be able to take FMLA leave to care for Raquel but for the Postal Service’s application of DOMA, 1 U.S.C. § 7, which denies FMLA leave to a Postal Service employee if that employee seeks to care for a spouse of the same sex.
311. Although Vermont has determined that different-sex couples and same-sex couples must be treated the same and are, in fact, treated the same in Vermont vis a vis marriage and the recognition of their marital status under state law, federal law operates to treat different-sex married couples and same-sex married couples differently.
312. The disparity of treatment with regard to benefits available under the FMLA that is mandated by DOMA, 1 U.S. C. § 7, creates a classification that treats similarly-situated individuals differently without justification in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.
313. As to the FEHB program, Plaintiffs Lynda DeForge and Raquel Ardin also repeat and reallege the allegations set forth in Paragraphs 269271, above, as if fully set forth herein. The FEHB program extends to qualified employees such as Lynda. See 5 U.S.C. §§ 8901, 8905.
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314. Under existing FEHB statutory and regulatory provisions, an employee may elect “Self and Family” coverage and enroll his or her spouse for health insurance benefits under the FEHB program.
315. Under existing FEHB statutory and regulatory provisions, Lynda would be able to enroll Raquel in a “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a federal employee’s spouse if that spouse is of the same sex.
316. The disparity of treatment with regard to benefits available under the FMLA is mandated by DOMA, 1 U.S.C. § 7, and to whatever extent the disparity of treatment with regard to federal employment-related benefits available to Lynda and Raquel is, in fact, mandated by DOMA, 1 U.S.C. § 7, this disparity of treatment creates a classification that treats similarly-situated individuals differently without justification in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.
317. An actual controversy exists between and among the parties. COUNT IV
(Janet Geller and Joanne Marquis v. Timothy F. Geithner and Douglas H. Shulman)
318. Plaintiffs Janet Geller and Joanne Marquis repeat and reallege the allegations set forth in Paragraphs 19-20, 28, 33, 37-72 and 176-199 as if fully set forth herein.
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319. The New Hampshire Retirement System (“NHRS”) is a state pension system receiving favorable tax qualification status under I.R.C. § 401(a).
320. The Secretary of the Treasury is responsible for the enforcement and administration of the Internal Revenue Code, including the qualification of pension plans. 26 U.S.C. § 7801.
321. The Commissioner of Internal Revue is responsible for the enforcement and administration of the Internal Revenue Code, including the qualification of pension plans.
322. Under I.R.C. § 401(h), the NHRS, as a tax-qualified pension plan, is permitted to provide for payment of “medical subsidy” benefits for sickness, accident, hospitalization and medical expenses for retired employees, their spouse and dependents.
323. Under existing I.R.C. statutes and regulations as well as New Hampshire state law, Jo would receive a medical subsidy spousal benefit from the NHRS to help pay for her legal spouse Jan’s private health insurance premiums, but for DOMA, 1 U.S.C. § 7, which prohibits the NHRS as a tax-qualified plan from providing the benefit to an otherwise qualified retiree’s spouse if that spouse is of the same sex.
324. DOMA, 1 U.S.C. § 7, creates a classification with respect to taxqualified pension benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in
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violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
325. An actual controversy exists between and among the parties. COUNT V
(Suzanne Artis and Geraldine Artis v. United States of America) 326. Plaintiffs Suzanne and Geraldine Artis repeat and reallege the allegations set forth in Paragraphs 21-22, 36, 37-72 and 200-221 as if fully set forth herein. 327. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 328. Geraldine and Suzanne seek recovery of an IRS refund attributable to refundable credits for the taxable year ending December 31, 2009. 329. On or before April 15, 2010, Geraldine and Suzanne each timely filed with the IRS separate federal income tax returns for the year 2009. Suzanne filed her federal income tax return using the Head of Household filing status and Geraldine used the Single filing status. Because of DOMA, 1 U.S.C. § 7, Suzanne and Geraldine were forced to file separate returns as if they were unmarried, and were not permitted to file one federal income tax return as Married Filing Jointly.
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330. In November 2010, Suzanne and Geraldine each filed a first amended return for the 2009 tax year to correct errors made by their tax preparer. Suzanne’s first amended return corrected an overstated refundable education credit and enclosed a payment of $2,505, consisting of $2,430 in federal income taxes and the balance in accrued interest. Suzanne subsequently received a refund check from the IRS in the amount of $25.24, presumably related to overpayment of accrued interest on the first amended return. On Geraldine’s first amended return, she claimed a refund of $5 related to the refundable “Making Work Pay” tax credit.
331. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
332. On November 24, 2010, Geraldine and Suzanne filed a second amended return, IRS Form 1040X and attachments, with the IRS Service Center at Kansas City, Missouri. Consistent with the 1958 Revenue Ruling, the second amended return changed their filing status to Married Filing Jointly based on the fact that they were married under Connecticut law, and claimed additional refundable credits in the amount of $1,465. The second amended return explained that, as a married couple under Connecticut law, they should be permitted to file joint returns because DOMA, 1 U.S.C. § 7, is unconstitutional.
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333. The IRS will disallow this claim for refund solely because of DOMA, 1 U.S.C. § 7, on or before June 1, 2011, or the refund claim will be deemed disallowed under governing law as of such date, at the latest.
334. An individual who is married to a person of the opposite sex is not forced to file his or her federal income tax returns other than as married. Indeed, he or she is required to file in accordance with his or her legal marital status. By contrast, DOMA, 1 U.S.C. § 7, forces legally married same-sex couples to disregard their marital status, which results in a different federal income tax. As a result of this disparate treatment, Geraldine and Suzanne Artis received a 2009 federal income tax refund that was $1,465 less than a similarly situated opposite-sex married couple would have received.
335. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparate treatment with regard to the 2009 federal income tax filing of Geraldine and Suzanne, it creates a classification that treats similarly situated individuals differently without justification, in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
336. An actual controversy exists between and among the parties. COUNT VI
(Bradley Kleinerman and James “Flint” Gehre v. United States of America)
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337. Plaintiffs Bradley Kleinerman and James “Flint” Gehre repeat and reallege the allegations set forth in Paragraphs 23-24, 36, 37-72 and 222-246 as if fully set forth herein.
338. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
339. Brad and Flint seek a refund of federal income tax for the taxable year ending December 31, 2009.
340. On or before April 15, 2009, Brad timely filed with the IRS Service Center in Kansas City, Missouri, a federal income tax return for the 2009 tax year using the Head of Household filing status. Brad timely paid federal income taxes of $2,647 on account of this federal income tax return.
341. On August 6, 2010, Brad filed a first amended income tax return for the 2009 tax year using the Head of Household filing status in order to correct an unintentional omission of income, and enclosed a payment of $300 in federal income taxes, the additional amount shown as due on this first amended income tax return.
342. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
343. On November 23, 2010, Brad and Flint filed a second amended return, IRS Form 1040X and attachments, with the IRS Service Center at
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Kansas City, Missouri. Consistent with the 1958 Revenue Ruling, the second amended return changed their filing status to Married Filing Jointly based on the fact that they were married under Connecticut law, and claimed a refund of federal income tax overpaid in the amount of $2,085. The second amended return explained that, as a married couple under Connecticut law, they should be should be permitted to file jointly because DOMA, 1 U.S.C. § 7, is unconstitutional.
344. The IRS will disallow this claim for refund solely because of DOMA, 1 U.S.C. § 7, on or before June 1, 2011, or the refund claim will be deemed disallowed under governing law as of such date, at the latest.
345. An individual who is married to a person of the opposite sex is not forced to file his or her federal income tax returns other than as married. Indeed, he or she is required to file in accordance with his or her legal marital status. By contrast, DOMA, 1 U.S.C. § 7, forces legally married same-sex couples to disregard their marital status, which results in a different federal income tax. As a result of this disparate treatment, Brad and Flint paid $2,085 more in federal income tax in 2009 than a similarly situated opposite-sex married couple would have paid.
346. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparate treatment with regard to the 2009 federal income tax filing of Brad and Flint, it creates a classification that treats similarly situated individuals differently without justification, in excess of Congressional
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authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
347. An actual controversy exists between and among the parties. VII
(Damon Savoy and John Weiss v. Timothy Geithner and John Walsh) 348. Plaintiffs Damon Savoy and John Weiss repeat and reallege
the allegations set forth in Paragraphs 25-26, 28, 35, 37-72 and 247-267 as if fully set forth herein.
349. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.
350. Pursuant to Congressional authority, 5 U.S.C. § 8913, OPM prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.
351. The pertinent regulations promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations.
352. The FEHB Program extends to federal employees such as the Plaintiff Damon Savoy. See 5 U.S.C. §§ 8901, 8905.
353. Under existing FEHB statutory and regulatory provisions, a federal employee may elect “Self and Family” coverage and enroll his spouse for health insurance benefits under the FEHB program.
354. Under existing FEHB statutory and regulatory provisions, Damon would be able to enroll John in his “Self and Family” plan but for the application of DOMA, 1 U.S.C. § 7, by the OCC and OPM which denies
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spousal health insurance coverage to a federal employee’s spouse if that spouse is of the same sex.
355. Under existing FEHB statutory and regulatory provisions, John would be enrolled in Damon’s “Self and Family” plan but for the application of DOMA, 1 U.S.C. § 7, by the OCC and OPM which denies spousal health insurance coverage to a federal employee’s spouse if that spouse is of the same sex.
356. To the extent that the disparity of treatment with regard to federal employment-related benefits available to Damon and John is, in fact, mandated by DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
357. An actual controversy exists between and among the parties.
PRAYERS FOR RELIEF
WHEREFORE, the plaintiffs pray that this Court: 1. Declare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiffs. 2. Declare that DOMA, 1 U.S.C. § 7, is unconstitutional and void as applied to deny claims of federal employees and retirees to enroll their
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spouses in the FEHB program where those spouses are lawfully recognized as spouses under Connecticut and Vermont law.
3. Declare that DOMA, 1 U.S.C. § 7, is unconstitutional and void as applied to deny surviving spouses the ERISA-mandated qualified preretirement survivor annuity (QPSA) where those surviving spouses are lawfully recognized as spouses under Connecticut law.
4. Declare that DOMA, 1 U.S.C. § 7, is unconstitutional and void as applied to deny surviving spouses the one-time Social Security lumpsum death benefit where those surviving spouses are lawfully recognized as spouses under Connecticut law.
5. Declare that DOMA, 1 U.S.C. §7, is unconstitutional and void as applied to deny claims for leave under the FMLA to care for a spouse lawfully recognized as a spouse under Vermont law.
6. Declare that DOMA, 1 U.S.C. § 7, is unconstitutional and void as applied to prohibit the New Hampshire Retirement System, as a taxqualified pension plan, from providing a § 401(h) medical subsidy spousal benefit to a retiree whose spouse is lawfully recognized as a spouse under New Hampshire law.
7. Enjoin the defendants from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex.
8. Permanently enjoin the defendants United States Postal Service and John E. Potter and defendants Timothy Geithner and John
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Walsh from administering the FEHB program in contradiction to the Court’s declaration in Prayer 2.
9. Permanently enjoin the defendants Timothy Geithner and Hilda Solis from administering and enforcing the provisions of ERISA in contradiction to the Court’s declaration in Prayer 3.
10. Permanently enjoin the defendant Michael J. Astrue to review applications for the one-time, lump-sum death benefit under 42 U.S.C. § 402(i) without regard to DOMA, 1 U.S.C. § 7, and in accordance with the Court’s declaration in Prayer 4.
11. Permanently enjoin the defendants United States Postal Service and John E. Potter from administering and enforcing the FMLA in contradiction to the Court’s declaration in Prayer 5.
12. Permanently enjoin the defendants Secretary of the Treasury and the Commissioner of Internal Revenue from administering and interpreting §§ 401(a) and 401(h) of the Internal Revenue Code in contradiction to the Court’s declaration in Prayer 6.
13. Award plaintiffs Suzanne and Geraldine Artis judgment in the amount of $1,465, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award of reasonable litigation costs incurred in this proceeding under 26 U.S.C. § 7430.
14. Award plaintiffs Bradley Kleinerman and James “Flint” Gehre judgment in the amount of $2,085, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award
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of reasonable litigation costs incurred in this proceeding under 26 U.S.C. §
7430.
15. Award attorney’s fees and costs to plaintiffs pursuant to 28
U.S.C. § 2412 or any other applicable statutory provision.
16. Grant such other relief as is just and appropriate.
JOANNE PEDERSEN & ANN MEITZEN GERALD V. PASSARO, II RAQUEL ARDIN & LYNDA DEFORGE JANET GELLER & JOANNE MARQUIS SUZANNE & GERALDINE ARTIS BRADLEY KLEINERMAN & JAMES GEHRE and DAMON SAVOY & JOHN WEISS
By their attorneys,

GAY

& LESBIAN ADVOCATES & DEFENDERS

/s/ Gar gbuseck@ Mar mbonauto@glad.org Janson
vhenr 30 Boston, (617)

Gary D. Buseck y D. Buseck, #ct28461
glad.org y L. Bonauto, #ct28455
Wu, #ct28462 jwu@glad.org Vickie L. Henry, (pro hac vice motion to be filed)
y@glad.org Winter Street, Suite 800
MA 02108 426-1350

JENNER & BLOCK /s/ Paul M. Smith Paul M. Smith, (pro hac vice motion to be filed)
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psmith@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060

HORTON, SHIELDS & KNOX

/s/

Kenneth J. Bartschi_____________

Kenneth

J. Bartschi, #ct17225

kbartschi@hortonshieldsknox.com

Karen

Dowd, #ct09857

kdowd@hortonshieldsknox.com

90

Gillett St.

Hartford,

CT 06105

(860)

522-8338

AS TO PLAINTIFFS SUZANNE & GERALDINE ARTIS BRADLEY KLEINERMAN & JAMES GEHRE

SULLIVAN & WORCESTER LLP

/s/ David J. Nagle David J. Nagle, #ct28508 dnagle@sandw.com Richard L. Jones, #ct28506 rjones@sandw.com One Post Office Square Boston, MA 02109 (617) 338-2800

DATED: January 14, 2011
CERTIFICATE OF SERVICE
I hereby certify that on January 14, 2011, a copy of the foregoing First Amended Complaint was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

/s/

Gary D. Buseck______________

Gar

y D. Buseck

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 </s> Case 3:10-cv-01750-VLB Document 63 Filed 07/15/11 Page 1 of 71

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT

___________________________________________

JOANNE PEDERSEN & ANN MEITZEN,

)

GERALD V. PASSARO II,

)

LYNDA DEFORGE & RAQUEL ARDIN,

)

JANET GELLER & JOANNE MARQUIS,

)

SUZANNE & GERALDINE ARTIS,

)

BRADLEY KLEINERMAN & JAMES GEHRE, and )

DAMON SAVOY & JOHN WEISS,

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL MANAGEMENT,

)

TIMOTHY F. GEITHNER, in his official capacity )

as the Secretary of the Treasury, and

)

HILDA L. SOLIS, in her official capacity as the )

Secretary of Labor,

)

MICHAEL J. ASTRUE, in his official capacity

)

as the Commissioner of the Social Security

)

Administration,

)

UNITED STATES POSTAL SERVICE,

)

JOHN E. POTTER, in his official capacity as

)

The Postmaster General of the United States of )

America,

)

DOUGLAS H. SHULMAN, in his official

)

capacity as the Commissioner of Internal

)

Revenue,

)

ERIC H. HOLDER, JR., in his official capacity

)

as the United States Attorney General,

)

JOHN WALSH, in his official capacity as Acting )

Comptroller of the Currency, and

)

THE UNITED STATES OF AMERICA,

)

)

Defendants.

)

___________________________________________)

CIVIL ACTION No. 3:10 CV 1750 (VLB)

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 3:10-cv-01750-VLB Document 63 Filed 07/15/11 Page 2 of 71
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................ iii
INTRODUCTION............................................................................................................. 1
STATEMENT OF FACTS ............................................................................................... 4
A. Federal Marriage-Based Laws, Programs, Rights, and Responsibilities. ................................................................................................. 4
B. Plaintiffs Have Been Harmed Because DOMA Compels the Government to Deny for All Federal Purposes that They are Married........... 5
ARGUMENT ................................................................................................................. 14
I. PLAINTIFFS’ EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED SCRUTINY .............................................................................................................. 15
A. DOMA Requires Heightened Scrutiny Because It Discriminates on the Basis of Sexual Orientation....................................................................... 16
1. Gay Men and Lesbians Have Experienced A History of Discrimination. ............................................................................................ 19
2. Sexual Orientation is Unrelated to the Ability to Contribute to Society. ........................................................................................................ 20
3. Gay Men and Lesbians Face Significant Obstacles to Achieving Protection from Discrimination Through the Political Process. ............. 21
4. Sexual Orientation Is an Enduring and Defining Characteristic of a Person’s Identity. ........................................................................................ 24
B. DOMA Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships......................................................................... 27
II. DOMA FAILS HEIGHTENED SCRUTINY ............................................................... 30
III. DOMA FAILS EVEN RATIONAL BASIS REVIEW ................................................. 31
A. A Uniform Federal Definition of Marriage Contrary to State Law Is Contrary to the Federalist System of Dual Sovereignty................................ 32
B. Rational Basis Review is Not “Toothless” ..................................................... 37
C. No Contemporaneous Interest Mentioned by Congress Is Sufficient to Uphold DOMA............................................................................................... 41
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Case 3:10-cv-01750-VLB Document 63 Filed 07/15/11 Page 3 of 71
1. DOMA Does Not Promote “Responsible Procreation and ChildRearing.” ...................................................................................................... 41
2. DOMA Cannot Be Justified as Preserving “Tradition” For Its Own Sake.............................................................................................................. 45
3. DOMA Does Not “Preserve Scarce Resources,” Which Is Not In any Event a Justification for Denying Rights Indiscriminately and Inequitably. .................................................................................................. 47
4. Moral Disapproval of Homosexuality is Not a Valid Interest. .................. 49 D. No Post-Hoc Interest Asserted by the House In Litigation Is Sufficient
to Uphold DOMA............................................................................................... 51 1. Continuing the “Historic” Limitation of Federal Marital Rights,
Benefits, and Responsibilities to Opposite-Sex Couples is Not a Cognizable Interest. .................................................................................... 51 2. DOMA Cannot Be Justified as Promoting “Consistency” In The Federal Treatment of Same-Sex Couples, Irrespective of Marital Status. .......................................................................................................... 52 CONCLUSION .............................................................................................................. 58
ii

Case 3:10-cv-01750-VLB Document 63 Filed 07/15/11 Page 4 of 71
TABLE OF AUTHORITIES
CASES Able v. United States, 155 F.3d 628 (2d Cir. 1998) .................................................... 18 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ........................................ 21 Ankenbrandt v. Richards, 504 U.S. 689 (1992).......................................................... 33 Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) ......................... 27 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)................................................................... 12 Baker v. Nelson, 409 U.S. 810 (1972) ......................................................................... 58 Baker v. Nelson, 191 N.W. 185 (Minn. 1971).............................................................. 58 In re Balas, Case No. 2:11-bk-17831 TD, 2011 Bankr. LEXIS 2157 (C.D. Cal.
Bankr. June 13, 2011) ............................................................................................ 18 Beard v. Banks, 548 U.S. 521 (2006) .......................................................................... 14 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356
(2001) .......................................................................................................... 32, 39, 53 Boggs v. Boggs, 520 U.S. 833 (1997)......................................................................... 10 Bowen v. Gilliard, 483 U.S. 587 (1987) ................................................................. 17, 24 Bradwell v. Illinois, 83 U.S. 130 (1872)....................................................................... 50 Bush v. Gore, 531 U.S. 98 (2000)................................................................................ 28 Califano v. Goldfarb, 430 U.S. 199 (1977) .................................................................... 9 Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)............................... 24, 25 Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)................... 18 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ............... 16, 17, 30,
31, 38, 39, 50 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)................................................................. 18 Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976)..................................... 39, 44, 45 DeSylva v. Ballentine, 351 U.S. 570 (1956) ................................................................ 36
iii

Case 3:10-cv-01750-VLB Document 63 Filed 07/15/11 Page 5 of 71
Dunn v. Commissioner, 70 T.C. 361 (1978), aff’d, 601 F.2d 599 (7th Cir. 1979) (unpublished table decision) ................................................................................ 35
Eisenstadt v. Baird, 405 U.S. 438 (1972).............................................................. 40, 45
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)............................. 33
FCC v. Beach Communication, Inc., 508 U.S. 307 (1993)......................................... 38
Francis v. INS, 532 F.2d 268 (2d Cir. 1976)................................................................ 38
Frontiero v. Richardson, 411 U.S. 677 (1973).......................................... 20, 21, 23, 24
Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010)............................................................................................... 41, 42, 43, 46, 48, 49, 52, 53, 56
Griswold v. Connecticut, 381 U.S. 479 (1965) ........................................................... 44
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....................................................... 38
Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494 (2d Cir. 2001)........................................................................................................................ 53
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)............................ 27-28
Heller v. Doe, 509 U.S. 312 (1993) .............................................................................. 39
Helvering v. Janney, 311 U.S. 189 (1940) .................................................................... 8
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) .............. 25
High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) ......................................................................................................... 18
Houston Community Hospital v. Blue Cross & Blue Shield of Texas, Inc., 481 F.3d 265 (5th Cir. 2007) ..................................................................................... 6
Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) ...................................................................................................................... 58
Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008)... 17, 18, 20, 23, 25, 26, 41, 42, 43, 47, 49
Lawrence v. Texas, 539 U.S. 558 (2003) .................................18, 22, 24, 28, 43, 50, 51
Lee v. Commissioner, 64 T.C. 552 (1975), aff’d, 550 F.2d 1201 (9th Cir. 1977) ....... 35
iv

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In re Levenson, 587 F.3d 925 (9th Cir. 2009) ....................................................... 49, 53 Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001) ...................................................... 40 Lofton v. Secretary of Department of Children & Family Services, 377 F.3d
1275 (11th Cir. 2004) ......................................................................................... 39-40 Lofton v. Secretary of Department of Children &Family Services, 358 F.3d
804 (11th Cir. 2004) ................................................................................................ 18 Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal.
2010)........................................................................................................................ 23 Loving v. Virginia, 388 U.S. 1 (1967) .............................................................. 33, 50, 56 Lyng v. Castillo, 477 U.S. 635 (1986).................................................................... 17, 21 M.L.B. v. S.L.J., 519 U.S. 102 (1996)........................................................................... 29 In re Marriage Cases, 183 P.3d 384 (Cal. 2008), superseded by, Straus v.
Horton, 207 P.3d 48 (Cal. 2009)............................................................................. 25 Matthews v. de Castro, 429 U.S. 181 (1976) .............................................................. 38 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)........................... 30 Moore v. City of East Cleveland, 431 U.S. 494 (1977)............................................... 28 National Federation of Federal Employees v. Devine, 679 F.2d 907 (D.C. Cir.
1981).......................................................................................................................... 6 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ................................................ 54 Northwest Austin Municipal Utility District Number One v. Holder, 129 S. Ct.
2504 (2009) ............................................................................................................. 35 Nyquist v. Mauclet, 432 U.S. 1 (1977)......................................................................... 24 Palmore v. Sidoti, 466 U.S. 429 (1984) ................................................................. 46, 51 Pennoyer v. Neff, 95 U.S. 714 (1877), overruled on other grounds, Shaffer v.
Heitner, 433 U.S. 186 (1977) ............................................................................. 33-34 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ............. 4, 18, 42, 47 Plyler v. Doe, 457 U.S. 202 (1982) ...................................................... 16, 17, 29, 38, 48 Pucino v. Verizon Wireless Comm’ns, Inc., 618 F.3d 112 (2d Cir. 2010)................. 14
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Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003)...................................... 28, 31 Reynolds v. United States, 98 U.S. 145 (1878) .......................................................... 36 Ricards v. United States, 683 F.2d 1219 (9th Cir. 1981) ........................................... 54 Riviera v. Marcus, 696 F.2d 1016 (2d Cir. 1982) ........................................................ 28 Romer v. Evans, 517 U.S. 620 (1996) .......................................... 17, 18, 22, 29, 31, 33,
39, 40, 46, 47, 51 Shaprio v. Thompson, 394 U.S. 618 (1969), overruled in part on other
grounds, Edelman v. Jordan, 415 U.S. 651 (1974)............................................... 49 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ................................. 45 Sosna v. Iowa, 419 U.S. 393 (1975) ............................................................................ 33 Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266 (2d
Cir. 1985), aff’d, 476 U.S. 898 (1986) ..................................................................... 31 Spearman v. Spearman, 482 F.2d 1203 (5th Cir. 1973)............................................. 36 Stanley v. Illinois, 405 U.S. 645 (1972) ....................................................................... 28 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ............................................................ 18 Thompson v. Thompson, 484 U.S. 174 (1988) .......................................................... 42 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)............................... 28 Turner v. Safley, 482 U.S. 78 (1987) ........................................................................... 33 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) .. 31, 49, 51 United States v. Lopez, 514 U.S. 549 (1995)........................................................ 34, 54 United States v. Morrison, 529 U.S. 598 (2000) ......................................................... 33 United States v. Sacco, 428 F.2d 264 (9th Cir. 1970) ................................................ 36 United States v. Virginia, 518 U.S. 515 (1996) ......................................... 17, 30, 31, 51 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ............................ 18, 19, 20, 23, 25, 26 Von Tersch v. Commissioner, 47 T.C. 415 (1968) ..................................................... 35 Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989)................................... 26
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Williams v. Illinois, 399 U.S. 235 (1970) ..................................................................... 47 Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) ..................... 23, 29 Zablocki v. Redhail, 434 U.S. 374 (1978).................................................................... 33 STATUTES AND REGULATIONS Haw. Const. art. I, § 23 ................................................................................................ 12 U.S.C.A., T.1, Ch.1 ....................................................................................................... 34 1 U.S.C. § 7............................................................................................................... 1, 11 5 U.S.C. § 3110............................................................................................................... 5 5 U.S.C. § 8901(5) .......................................................................................................... 6 5 U.S.C. § 8902............................................................................................................... 6 5 U.S.C. § 8903............................................................................................................... 6 5 U.S.C. § 8905............................................................................................................... 6 5 U.S.C. § 8906............................................................................................................... 6 5 U.S.C. § 8913............................................................................................................... 6 8 U.S.C. § 1186b(a)(2)(A)............................................................................................... 5 8 U.S.C. § 1430............................................................................................................... 5 26 U.S.C. § 1................................................................................................................... 8 26 U.S.C. § 401(a)(11)(A)(ii)......................................................................................... 10 26 U.S.C. § 401(h) .................................................................................................. 10, 11 26 U.S.C. § 417(c) ........................................................................................................ 10 26 U.S.C. § 420............................................................................................................. 11 26 U.S.C. § 420(a) ........................................................................................................ 10 26 U.S.C. § 420(b)(3).................................................................................................... 10 26 U.S.C. § 420(c)(1) .................................................................................................... 10 26 U.S.C. § 420(e)(1)(A) ............................................................................................... 10
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26 U.S.C. § 420(e)(1)(C) ............................................................................................... 10 28 U.S.C. § 458............................................................................................................... 5 28 U.S.C. § 1738A ........................................................................................................ 42 28 U.S.C. § 1738C .......................................................................................................... 1 29 U.S.C. § 1055............................................................................................................. 7 29 U.S.C. § 1055(a)(2) .................................................................................................. 10 29 U.S.C. § 2601(b)(1).................................................................................................... 8 29 U.S.C. § 2612(a)(1)(C) ............................................................................................... 7 29 U.S.C. § 2654............................................................................................................. 7 38 U.S.C. § 103(c) ........................................................................................................ 39 42 U.S.C. § 402(l) ........................................................................................................... 9 42 U.S.C. § 413(a) .......................................................................................................... 9 42 U.S.C. § 414(a) .......................................................................................................... 9 42 U.S.C. § 414(b) .......................................................................................................... 9 42 U.S.C. § 415(a) .......................................................................................................... 9 42 U.S.C. § 416(h)(1)(A)(i) ........................................................................................... 35 Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7 .......................... 1 Conn. Gen. Stat. § 46b-20(4)....................................................................................... 18 5 C.F.R. § 211.103 ........................................................................................................ 57 5 C.F.R. § 831.613(e).................................................................................................... 57 5 C.F.R. § 842.605 ........................................................................................................ 57 5 C.F.R. § 843.102 ........................................................................................................ 35 5 C.F.R. § 890.301(f) ...................................................................................................... 6 5 C.F.R. § 890.301(g) ..................................................................................................... 6 5 C.F.R. § 890.302(a)(1) ................................................................................................. 6
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5 C.F.R. § 1651.5 .......................................................................................................... 57 20 C.F.R. § 10.415 ........................................................................................................ 57 20 C.F.R. § 219.30 ........................................................................................................ 36 20 C.F.R. § 219.32 ........................................................................................................ 57 20 C.F.R. § 222.11 .................................................................................................. 36, 57 20 C.F.R. § 222.13 ........................................................................................................ 57 20 C.F.R. § 404.345 ................................................................................................ 36, 57 20 C.F.R. § 404.726 ...................................................................................................... 57 28 C.F.R. § 32.3............................................................................................................ 57 29 C.F.R. § 825.113 ...................................................................................................... 57 29 C.F.R. § 825.113(a).................................................................................................... 7 29 C.F.R. § 825.122 ...................................................................................................... 36 29 C.F.R. § 825.122(a).................................................................................................... 7 29 C.F.R. § 825.800 ...................................................................................................... 36 38 C.F.R. § 3.1(j) .................................................................................................... 36, 57 45 C.F.R. § 237.50(b)(3) ............................................................................................... 36 LEGISLATIVE MATERIALS 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr)............... 13 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent)......... 13 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn) ......... 13 142 Cong. Rec. H7480 (daily ed. July 12, 1996) (statement of Rep. Henry
Hyde)....................................................................................................................... 13 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer)............ 13 142 Cong. Rec. H7494 (daily ed. July 12, 1996) (statement of Rep. Smith) ............ 13 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) ........ 13 142 Cong. Rec. H7503-05 (daily ed. July 12, 1996) ................................................... 48
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142 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) ....... 13 H.R. Rep. No. 67-350 (1921), as reprinted in 1939-1 C.B. (Pt. 2) 168 ......................... 8 H.R. Rep. No. 86-957 (1959) .......................................................................................... 6 H.R. Rep. No. 103-8(II) (1993).................................................... 8, 14, 37, 41, 45, 47, 49 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ........................ 12 S. Rep. No. 103-3 (1993), reprinted in 1993 U.S.C.C.A.N. 3 ........................................ 8 OTHER AUTHORITIES In re Applications of Algreg Cellular Engineering, Memorandum Opinion
and Order, 12 F.C.C.R. 8148 (1997)......................................................................... 5 Bipartisan Legal Advisory Group in Support of Motion to Dismiss, Golinski
v. U.S. Office of Pers. Mgmt., No. 3:10-cv-257 (N.D. Cal. June 3, 2011), ECF No. 119-1................................................................................. 16, 40, 51, 52, 56 Congressional Budget Office, “The Potential Budgetary Impact of Recognizing Same-Sex Marriages,” Jan. 21, 2004.............................................. 48 Fed. R. Civ. P. 56(a) ..................................................................................................... 14 Fed. R. Evid. 501............................................................................................................ 5 Report of the U.S. Government Accountability Office, Office of General Counsel, January 23, 2004 (GAO-04-353R)............................................................ 4 Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16) ..................................................................... 14 Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611 (2004) ............. 37
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Plaintiffs respectfully submit this Memorandum of Law in support of their Motion for Summary Judgment.
INTRODUCTION Plaintiffs are gay men or lesbians who married a person of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire. Once legally married, the Plaintiffs would ordinarily expect to exercise all of the rights and discharge all of the responsibilities of married people. However, Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), defines the terms “marriage” and “spouse” so as to exclude the lawful marriages of same-sex couples from federal recognition.1 As applied to Plaintiffs, DOMA takes the unitary class of couples married in their home states and divides it in two: those who are “married” under federal law, and those whose marriages do not exist for any federal purpose. This sundering of the class of married people violates the Equal Protection guarantee of the Fifth Amendment. DOMA merits heightened equal protection scrutiny because, as both the Department of Justice and the United States House of Representatives (“the House”) have affirmed, it discriminates on its face on the basis of sexual orientation, which bears all the traditionally recognized hallmarks of a suspect classification. Heightened scrutiny also is warranted because DOMA burdens Plaintiffs’ fundamental interest in the integrity of their existing familial
1The Defense of M arriage Act also contai ns a distinct provision, Section 2, authorizing States to disregard marri ages of sam e-sex couples performed an d recognized by other States. See 28 U. S.C. § 1738C. Plaintiffs do not challenge Section 2 here; the shorthand reference to “DOMA” in this brief is intended exclusively as a reference to Section 3 of the Act and not to Section 2.
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relationships. If heightened scrutiny is applied, DOMA cannot possibly survive review.
Even if DOMA is examined without heightened scrutiny, it fails. Under our constitutional scheme, it is the prerogative of the States to say who is “married,” as Connecticut, Vermont, and New Hampshire have done here. There is no legitimate or plausible federal interest that is served by the creation of a freestanding federal definition of marriage that excludes same-sex couples. DOMA’s break with longstanding federalist tradition merits viewing the interests advanced by the House to defend DOMA with particular skepticism.
No interest advanced to defend DOMA can in fact withstand any level of scrutiny. The reasons offered by Congress at the time of DOMA’s passage are either nonsensical or just another way of saying that Congress wanted to denounce and harm those gay men and lesbians who form long-term relationships and seek to have those relationships recognized and respected through civil marriage. For example, it is absurd to suggest that barring federal recognition of marriages of same-sex couples will somehow promote responsible procreation or children’s welfare; DOMA has no effect on the children of heterosexual couples, and it actively harms the children of same-sex couples, including the nine children being raised by Plaintiffs. Nor can DOMA’s singleminded targeting of same-sex couples be justified as an effort to bolster “traditional” marriages – given that it has no effect on different-sex marriages whatsoever. And the government itself has determined that DOMA, while excluding Plaintiffs and others like them from important federal programs
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designed to support couples and families, has a net cost to the federal purse rather than a net savings.
As for the House’s apparent efforts in other litigation to conjure up new and more defensible post hoc justifications for DOMA, they are equally incoherent. The House’s invocation of the “historic” definition of marriage, for instance, is just an appeal to tradition for its own sake, which is not a valid justification for discrimination. Nor can DOMA plausibly be justified as an effort to promote nationwide “consistency” for the sake of fairness or administrative convenience, given the federal government’s own longstanding history of deferring to state marital eligibility determinations despite wide and deep variations in state law, some of which persist to this day.
In the final analysis, DOMA makes sense only as an attempt by Congress to express moral disapproval for same-sex couples. Congress made perfectly clear that it was doing so. This is simply discrimination for its own sake, and is not a legitimate purpose for any governmental classification. Plaintiffs should not have to bear the burden of Congress’s desire to score political points by refusing to recognize Plaintiffs’ marriages and treat them equally.
For these reasons, Plaintiffs are entitled to summary judgment in their favor. The material facts are not in dispute. Each Plaintiff is suffering harm traceable directly to the Defendants’ refusal to recognize their State-sanctioned marriages. Each Defendant’s refusal to do so is the direct and proximate result of DOMA. Each Plaintiff has brought an as-applied challenge to DOMA because these refusals deny them legal rights and protections to which they would
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otherwise be entitled. There are no factual issues to resolve on any of these points, only a pure question of law: whether DOMA is unconstitutional as applied to these Plaintiffs.
The answer to that question is clear. There are no legitimate or remotely plausible justifications for the federal government’s continued refusal to recognize the Plaintiffs’ actual marital status. Thus, the Court should grant Plaintiffs’ Motion for Summary Judgment.2
STATEMENT OF FACTS A. Federal Marriage-Based Laws, Programs, Rights, and
Responsibilities. Federal law presently uses marital status in determining eligibility for federal rights, responsibilities, and opportunities in approximately 1,138 different federal laws. See Report of the U.S. Government Accountability Office, Office of General Counsel, January 23, 2004 (GAO-04-353R) (Affidavit of Gary D. Buseck (“Buseck Aff.”), Ex. A) (hereinafter “2004 GAO Report”). Federal law often affords more favorable treatment, or greater rights, to married persons than it does to single persons. At the same time, it is the States that marry people and not the federal government. Therefore, until DOMA, the federal government had relied on state determinations of marital status in determining eligibility for federal marital
2This is not a case seeking the right to marry. Plaintiffs are already married. Compare Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (seeking right of unmarried same-sex couples to marry). This case instead concerns the different and more burdensome treatment of Plaintiffs, married couples of the same sex, as compared to married couples of different sexes, notwithstanding the formal recognition of Plaintiffs’ marital and family relationships by the States of Connecticut, Vermont, and New Hampshire.
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rights and responsibilities.3 See Separate Statement of Non-Adjudicative Facts
(“SN-AF”), No. 8.
B. Plaintiffs Have Been Harmed Because DOMA Compels the Government to Deny for All Federal Purposes that They are Married.
Each Plaintiff is married to, or a surviving spouse of, another person of the
same sex. And each Plaintiff has been concretely harmed because DOMA forbids
the federal government, including the Defendants in this case, from
acknowledging that reality. Neither the harms suffered by each Plaintiff, nor the
fact that such harms have been or are being caused by Defendants’ treatment of
Plaintiffs as unmarried, can reasonably be disputed.
Three of the Plaintiff couples seek spousal protections based on their (or
their spouse’s) employment with the United States government. Plaintiff Joanne
Pedersen, after more than 30 years of service as a civilian employee of the
Department of the Navy, Office of Naval Intelligence, has been unable to add her
spouse, Plaintiff Ann Meitzen, to the health insurance coverage she receives
3Federal law looks to marital status across a vast range of laws and programs in which being married can be advantageous or disadvantageous, involving nonpecuniary as well as pecuniary rights and responsibilities. For instance, married persons enjoy the right under federal law to invoke the marital confidences and spousal privileges in federal court, see Fed. R. Evid. 501, the right to sponsor a non-citizen spouse for naturalization, see 8 U.S.C. § 1430, and to obtain conditional permanent residence for that spouse, id. § 1186b(a)(2)(A). Married persons are also subject to a number of legal obligations, such as conflict-of-interest rules governing federal employment and participation in federally funded programs, e.g., 5 U.S.C. § 3110, restrictions on employment with or appointment to the judiciary, see 28 U.S.C. § 458, and various ownership limitations and certifications related to telecommunications and broadcast licensing, see e.g., In re Applications of Algreg Cellular Engineering, 12 F.C.C.R. 8148, 8181-82 ¶83 (1997). In the well-known case of the so-called “marriage penalty,” some married persons receive less favorable treatment under the tax code than similarly situated unmarried persons.
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under the Federal Employees Health Benefits Program (“FEHB”).4 Despite
FEHB’s stated purpose of providing support and security for federal wage-
earners and their families,5 DOMA operates to preclude Plaintiff Pedersen from
obtaining insurance for Plaintiff Meitzen, her lawfully married spouse. As a
consequence, Plaintiff Meitzen has had to continue full-time employment in order
to maintain health insurance, even though part-time work would be much better
for her overall health and for her ability to manage chronic health conditions.
Plaintiffs’ Local Rule 56(a)1 Statement in Support of Plaintiffs’ Motion for
Summary Judgment (“SUF”), Nos. 5-11; Joint Affidavit of Joanne Pedersen & Ann
Meitzen (“Pedersen-Meitzen Aff.”), ¶¶ 1, 4, 6, 9-14.
Similarly, Plaintiff Damon Savoy, a federal government attorney with the
Office of the Comptroller of the Currency, has been denied the right to add his
4FEHB 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. Through the Defendant Office of Personnel Management, an FEHB enrollee can choose whether to enroll for individual (“Self Only”) coverage or for “Self and Family” coverage. Id. §§ 8902-8903, 8906, 8913 (OPM regulation); 8905, 8906 (types of coverage). Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment,” 5 C.F.R. § 890.302(a)(1); and an enrolled employee can change from individual to “self and family” coverage during an “open season” or within 60 days after a change in family status, “including a change in marital status.” See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). A “member of family” is defined to include “the spouse of an employee.” 5 U.S.C. § 8901(5). 5The purposes of FEHB are (1) to make federal employment competitive with benefits offered in the private sector, and (2) to provide support and security for federal wage-earners and their families. See H.R. Rep. No. 86-957 at 1-2 (1959) (“FEHB H. Rep.”) (goal was to “close the gap” and improve the “competitive position” of the government vis-à-vis private enterprise “in the recruitment and retention of competent civilian personnel,” and recognizing “urgent need” for an employee health benefits program as “essential to protect wage-earners and their families”); Nat’l Fed’n of Fed. Emps. v. Devine, 679 F.2d 907, 913 n.9 (D.C. Cir. 1982) (noting both purposes); Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 270-71 (5th Cir. 2007) (same).
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spouse, Plaintiff John Weiss, to his health insurance coverage. SUF Nos. 65, 6970. Since Plaintiff Weiss gave up his career to focus full-time on raising the couple’s three adopted children (now ages 12, 10, and 2), the couple has been forced into the private insurance market for his coverage. SUF Nos. 66-68. That process was both difficult and expensive because Plaintiff Weiss had a preexisting condition, diabetes. SUF No. 68, 71; see also Joint Affidavit of Damon Savoy & John Weiss (“Savoy-Weiss Aff.”), ¶¶ 2-6, 8, 10, 12-17.
Plaintiffs Raquel Ardin and Lynda DeForge are both Navy veterans. Lynda is a current U.S. Postal Service (“USPS”) employee with more than 25 years of service, and Raquel is a retired USPS employee, having served for 25 years. SUF Nos. 21-22. Both have “Self Only” FEHB coverage and would prefer to have Plaintiff DeForge simply enroll in a “Self and Family” plan for the two of them. However, DOMA precludes that option. SUF Nos. 32-36; see also Joint Affidavit of Raquel Ardin & Lynda DeForge (“Ardin-DeForge Aff.”), ¶¶ 3-7, 29-36. Plaintiff DeForge has also been denied FMLA leave to care for Plaintiff Ardin, who suffers from a serious medical condition that requires DeForge to take off a day of work every three months to transport her and care for her.6 DOMA precludes Plaintiffs DeForge and Ardin from enjoying the stability and security that FMLA is intended
6Under the Family and Medical Leave Act (“FMLA”), eligible employees are entitled to 12 workweeks of unpaid leave annually to, among other things, “care for the spouse … if such spouse … has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). Insofar as relevant to this case, it is administered by the Department of Labor, which, by regulation, defines “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides ….” Id. § 2654, 29 C.F.R. §§ 825.113(a), 825.122(a).
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to provide to families.7 H.R. Rep. No. 103-8(II), at 17 (1993) (noting that married
couples pledge to care for each other, and the FMLA “allows spouses to fulfill
this obligation. . . .”). This lack of FMLA leave has limited Plaintiff DeForge’s
options to deal with her own and her spouse’s medical needs; caused her to
delay surgery she needs; and created unnecessary stress and worry. SUF Nos.
20, 23-31; Ardin–DeForge Aff. ¶¶ 1-2, 14-26.
Two Plaintiff couples have suffered adverse income tax consequences
from being treated as single for purposes of the Internal Revenue Code.8
Plaintiffs Geraldine Artis (a former employee of the Connecticut Department of
Developmental Services and current student) and Plaintiff Suzanne Artis (a
librarian), together the parents of three children, have been forced to file federal
income tax returns as “head of household” and “single,” notwithstanding that
7Congress’s express purposes for FMLA included balancing “the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1). For Congress, this new “minimum labor standard” was “cost effective” “because when families fail it is often the public sector that picks up the tab.” S. Rep. No. 103-3, at 4-5, 18 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 6-7, 20. 8Under the Internal Revenue Code, the income tax imposed depends on the taxpayer’s filing status. 26 U.S.C. § 1. 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). Federal tax law has long permitted married couples to pool their income and deductions on a joint return and compute tax on their combined income as an economic unit. See, e.g., Helvering v. Janney, 311 U.S. 189, 192, 194-95 (1940) (approving the principle expressed in an opinion of the Solicitor of Internal Revenue, Sol. Op. 90, 4 C.B. 236, 238 (1921), that a joint return “is treated as the return of a taxable unit” and acknowledging Congressional “policy set forth in substantially the same terms for many years . . . to provide for a tax on [a married couple’s] aggregate net income”); H.R. Rep. No. 67-350, at 13 (1921), as reprinted in 1939-1 C.B. (Pt. 2) 168, 178 (referencing a married couple’s right “in all cases to make a joint return and have the tax computed on [their] combined income”).
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they have been married since 2009. They have borne a higher aggregate tax
burden as a result. SUF Nos. 47-49, 53; Joint Affidavit of Geraldine Artis &
Suzanne Artis (“Artis Aff.”), ¶¶ 1-3, 8, 13-14, 16. Plaintiffs Bradley Kleinerman and
James (“Flint”) Gehre, respectively a human resources director and stay-at-home
parent of the couple’s three sons, have similarly faced higher income taxes
because of their inability to file jointly. SUF Nos. 55-61; Joint Affidavit of Bradley
Kleinerman & James Flint Gehre (“Kleinerman-Gehre Aff.”), ¶¶ 1-4, 8-11.
One of the Plaintiffs, widower Gerald Passaro – although he and his
spouse, Thomas Buckholz, had paid into the Social Security system and
otherwise met all the eligibility conditions – was denied the “One-Time Lump-
Sum Death Benefit” of $255 that would have been available if his now-deceased spouse had been a wife rather than a husband.9 SUF Nos. 18-19; Affidavit of Gerald V. Passaro II (“Passaro Aff.”), ¶¶ 27-32. Because of DOMA, Plaintiff
Passaro, who previously worked as a hairdresser but now depends upon Social
Security disability benefits, also has been denied the Qualified Preretirement
Survivor Annuity (“QPSA”) that is guaranteed to a surviving spouse under a defined benefit pension plan such as the plan of the Bayer Corporation under
which his husband, Thomas Buckholz, a senior chemist, had been a vested
9The Social Security Act provides, in part, survivors’ benefits for eligible persons, including the Lump-Sum Death Benefit that is available to the surviving widow or widower of an individual who has an adequate level of earnings. 42 U.S.C. §§ 402(I), 413(a), 414(a), (b) and 415(a). Benefits under the Social Security program are provided to married and widowed individuals as an economic safety net. Workers earn benefits through their paid labor and contributions to the economy so that they can later rely on that economy to care for them and their dependents in old age and during periods of disability. See Califano v. Goldfarb, 430 U.S. 199, 208 (1977) (Social Security protects beneficiaries “against the economic consequences of old age, disability, and death”).
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participant at the time of his death.10 As a result, Plaintiff Passaro cannot enjoy
the protection of a stream of income that a QPSA is intended to provide to
surviving spouses.11 SUF Nos. 13-16; Passaro Aff. ¶¶ 3, 6, 11, 13-17, 20-21, 23.
Finally, Plaintiffs Joanne Marquis and Janet Geller are both retired New
Hampshire school teachers who taught in private and public schools for over 68
years combined. Both are qualified retirees, receiving pensions from the N.H.
Retirement System (“NHRS”). Because Plaintiff Marquis has more than 30 years
of service to the State, her NHRS benefits, unlike Plaintiff Geller’s, include a
medical cost supplement that helps pay for her Medicare Part B supplemental
insurance. That medical cost supplement also extends to a retiree’s spouse.12
But as a result of DOMA, the NHRS medical cost supplement does not extend to
10A private, defined benefit pension plan is subject to both the Employee Retirement Income Security Act (“ERISA”) as well as the Internal Revenue Code and is required under both statutes to provide a Qualified Preretirement Survivor Annuity (“QPSA”) to the surviving spouse of any “vested participant who dies before the annuity starting date and who has a surviving spouse. . . .” 29 U.S.C. § 1055(a)(2); 26 U.S.C. § 401(a)(11)(A)(ii) (same); see also id. § 417(c). 11The object of the requirement under 29 U.S.C. § 1055 of ERISA that the surviving spouse be provided a QPSA “is to ensure a stream of income to surviving spouses. Section 1055 mandates a survivor’s annuity not only where a participant dies after the annuity starting date but also . . . if the participant dies before then.” Boggs v. Boggs, 520 U.S. 833, 843 (1997). More broadly, the “principal object of [ERISA] is to protect plan participants and beneficiaries.” Id. at 845. 12A pension plan can provide a medical cost subsidy as a benefit to its retirees. In order for the pension plan to remain tax qualified under the Internal Revenue Code, the health benefit can only be extended to the retired employees, their spouses, and their dependents. 26 U.S.C. § 420(a), (b)(3), (c)(1), and (e)(1)(A) and (e)(1)(C); see also 26 U.S.C. § 401(h).
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Plaintiff Marquis’s spouse.13 SUF Nos. 39-45; Joint Affidavit of Joanne Marquis & Janet Geller (“Marquis-Geller Aff.”), ¶¶ 2-11.
Apart from these concrete financial losses, many Plaintiffs have also faced additional harm from the confusion and uncertainty that arise from having their marriages not “count” for many purposes, causing anxiety in everyday situations and inviting discrimination. SUF Nos. 30, 37, 62.
C. The 1996 Defense of Marriage Act. Normally, each Plaintiff would be entitled to the legal benefits and protections afforded to married (or widowed) persons under each of the various federal or state programs or private plans at issue – and would be treated the same as any other married person. But they are denied those rights and benefits because of Section 3 of the 1996 Defense of Marriage Act, in which Congress excluded same-sex couples from any marriage-based rights or benefits arising under federal law: CHAPTER 1--RULES OF CONSTRUCTION § 7. Definition of “marriage” and “spouse” In determining the meaning of an y Act of Congress, or of a ny ruling, regulation, or interpretation of th e various administrative bureau s and agencies of the United States, the word “marriage” means only a legal union between one man and one w oman as husband and w ife, and the w ord “spouse” refers onl y to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7.
13The Congressional purposes for allowing state and private pension plans to fund health insurance premiums for retirees under certain conditions pursuant to 26 U.S.C. §§ 401(h) and 420 would be no different from the purposes offered for the provision of health insurance under the FEHB Program. Supra note 4.
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Prior to DOMA’s enactment, the Hawaii Supreme Court had indicated that same-sex couples might be entitled to marry under the State’s constitution, raising the possibility that same-sex couples would begin marrying in the near future. See Baehr v. Lewin, 852 P.2d 44, 59-67 (Haw. 1993). The House Judiciary Committee’s Report on DOMA cited Baehr as part of an “orchestrated legal assault being waged against traditional heterosexual marriage,” and stated that this development “threatens to have very real consequences . . . on federal law.” H.R. Rep. No. 104-664, at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) (Buseck Aff. Ex. B). 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.” Id. at 10.14
The House Report acknowledged that federalism constrained Congress’s power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.” Id. at 3. Nonetheless, the Report stated that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage’,” id. at 12, and embraced DOMA as furthering Congress’s interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” id. The Report also claimed interests in “encouraging responsible procreation and child-rearing,” and conserving scarce resources. Id. at 13, 18.
14Baehr never took effect in Hawaii, as the State ultimately amended its Constitution to allow the State legislature to limit marriage to different-sex couples. See Haw. Const. art. I, § 23. However, six States now extend full marriage rights to same-sex couples (Iowa, New Hampshire, Connecticut, Vermont, Massachusetts, and New York (effective July 24, 2011)).
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Another purpose of the Act, as stated by the House Report, was to reflect
Congress’s “moral disapproval of homosexuality, and a moral conviction that
heterosexuality better comports with traditional (especially Judeo-Christian)
morality.” Id. at 16 (footnote omitted). The remarks of Rep. Henry Hyde, then-
Chairman of the House Judiciary Committee, were blunt but typical: “Most
people do not approve of homosexual conduct . . . and they express their
disapprobation through the law. . . . It is . . . the only way possible to express this
disapprobation.” 142 Cong. Rec. H7480, H7501 (daily ed. July 12, 1996). 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.”15 They argued that marriage
by gay men and lesbians would “demean” and “trivialize” heterosexual
marriage16 and might indeed be “the final blow to the American family.”17
15142 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). 16Id. 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”). 17Id. 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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Although DOMA amended the eligibility criteria for a vast number of different benefits, rights, and privileges dependent upon marital status either directly under federal law or controlled in some fashion by federal law, the relevant committees did not engage in any meaningful examination of the scope or effect of the law, much less the way in which federal interests in the relevant programs would be affected. Congress did not, for instance, hear any testimony from agency heads regarding how DOMA would affect federal programs, nor from historians, economists, or specialists in 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 generally “not defined.” H. Rep. at 10. The vast reach of the Act did not become fully clear until January 1997, months after its passage, when the General Accounting Office issued a report stating that DOMA implicated more than 1000 federal laws, touching on everything from entitlement programs like Social Security to employee issues to taxation. See Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16) (Buseck Aff. Ex. C).
ARGUMENT Summary judgment is appropriate when the pleadings, the discovery materials, and any affidavits show “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Beard v. Banks, 548 U.S. 521, 529, 534 (2006); Pucino v. Verizon Wireless Comm’ns, Inc., 618 F.3d 112, 117 (2d Cir. 2010). Here, the material facts are undisputed: each Plaintiff has been harmed by DOMA’s
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requirement that people married to a person of the same sex must be treated for federal purposes as though they were unmarried. This discriminatory treatment violates the constitutional guarantee of equal protection.
As shown below, the constitutionality of DOMA should be given heightened scrutiny for two independent reasons. First, DOMA unfairly discriminates on the basis of sexual orientation, which bears all the hallmarks of a suspect classification, as other courts, including the Connecticut Supreme Court, and now the President and Attorney General of the United States, have found. Second, DOMA disparately burdens the core liberty interest in the integrity of one’s family.
DOMA cannot survive such heightened review. Nor can it survive even rational basis review. The reasons Congress articulated when it enacted DOMA (all of which the Department of Justice has now wisely disavowed) and the new justifications that the House has conjured up for litigation are all nonsensical, counter-factual, or reflective of outright animus against gays and lesbians. Moreover, many of these justifications, coming from Congress, are inconsistent with our federalist traditions. Under any of the justifications proffered to defend DOMA, it violates the Equal Protection guarantee of the Fifth Amendment and cannot constitutionally be applied to Plaintiffs. I. PLAINTIFFS’ EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED
SCRUTINY DOMA’s discrimination against Plaintiffs cannot be justified by reference to any legitimate or rational interest. See Part III, infra. But the required showing should be even higher. Laws that discriminate on the basis of sexual orientation,
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such as DOMA, should be subject to heightened scrutiny. Other federal and state courts, the supreme court of this state, and now the President and Department of Justice, have all recently reached this conclusion, and this Court should as well. DOMA also disparately burdens Plaintiffs’ fundamental interests in their family relationships, and independently triggers heightened scrutiny on that basis.
A. DOMA Requires Heightened Scrutiny Because It Discriminates on the Basis of Sexual Orientation.
The Equal Protection guarantee “is essentially a direction that all persons similarly situated should be treated alike,” and when laws draw distinctions between persons based on certain characteristics, the presumption of constitutional validity “gives way.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985). Because those characteristics “are so seldom relevant to the achievement of any legitimate state interest[,] 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.” Id. at 440. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
DOMA on its face discriminates on the basis of sexual orientation, as the House has conceded. See Memorandum of Points and Authorities filed by the Bipartisan Legal Advisory Group in Support of Motion to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-257 (N.D. Cal. June 3, 2011), ECF No. 119-1, at 20 (hereinafter “Golinski MTD”) (“[I]t is reasonable to regard DOMA as drawing a
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line based on sexual orientation.”) (Buseck Aff. Ex. D). Same-sex married couples are singled out for disparate treatment in a multitude of ways that do not apply to other married couples. Such a law requires heightened scrutiny.
A classification triggers heightened scrutiny when (1) the target group has suffered a history of invidious discrimination; and (2) the characteristics that distinguish the group’s members bear no relation to their ability to perform or contribute to society. See Cleburne, 473 U.S. at 440-41; United States v. Virginia¸ 518 U.S. 515, 531-32 (1996). These two factors are the most important. See, e.g., Kerrigan v. Comm’r of Public Health, 957 A.2d 407, 427-28 (Conn. 2008). Courts also have sometimes considered the group’s minority status and/or relative lack of political power, see Plyler, 457 U.S. at 216 n.14; Lyng v. Castillo, 477 U.S. 635, 638 (1986) (“minority or politically powerless”) (emphasis added), as well as whether group members have “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987).
All four factors weigh heavily in favor of subjecting DOMA to heightened scrutiny.18 This is a question of first impression in the Second Circuit as well as at the Supreme Court, which has struck down on Equal Protection grounds wholly irrational laws that distinguish on the basis of sexual orientation, but without specifying the level of review. See Romer v. Evans, 517 U.S. 620, 632
18The term “heightened scrutiny” is used here to refer to both intermediate and strict scrutiny, i.e., to both “suspect” and “quasi-suspect” classes. Courts use the same factors to test for both strict and intermediate scrutiny. Plyler, 457 U.S. at 216-17; Kerrigan, 957 A.2d at 429-30. Plaintiffs’ position is that strict scrutiny is warranted here, but in the alternative intermediate scrutiny is warranted as well.
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(1996) (invalidating state constitutional amendment without deciding level of
scrutiny); see also Lawrence v. Texas, 539 U.S. 558, 574-75, 578 (2003)
(invalidating anti-sodomy statute on due process grounds but noting viability of
equal protection claim); Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998)
(declining to decide appropriate level of scrutiny because plaintiffs explicitly
sought only rational basis review). Although other courts have in the past
reached different conclusions,19 recent cases increasingly recognize that “gays
and lesbians are the type of minority strict scrutiny was designed to protect.”
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010); In re Balas,
No. 2:11-bk-1783, 2011 Bankr. LEXIS 2157 (C.D. Cal. Bankr. June 13, 2011); accord
Kerrigan, 957 A.2d at 431-32 (“sexual orientation meets all of the requirements of
a quasi-suspect classification”);20 Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa
19The Circuits that have held that classifications based on sexual orientation are not subject to heightened scrutiny virtually all did so before Lawrence and in many cases before Romer, and their reasoning has been superseded by those cases. See, e.g., Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc) (“[I]f the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a ‘suspect class.’”); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (citing Bowers v. Hardwick, 478 U.S. 186, 194 (1986), as basis for denying heightened scrutiny for sexual orientation classifications); see also Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 n.16 (11th Cir. 2004) (en banc) (citing cases from several Circuits all decided in 1997 or earlier). In the few recent decisions asserting the applicability of rational basis review, the courts were neither presented with nor considered the factors relevant to heightened review. See, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006). 20Kerrigan struck down marriage discrimination laws under Connecticut’s state constitution. However, the court explicitly applied the federal constitutional test due to its “evident correlation” with Connecticut’s state equal protection guarantee. 957 A.2d at 426-27. Kerrigan has since been codified by the Connecticut legislature. See Conn. Gen. Stat. § 46b-20(4) (defining “marriage” under Connecticut State law as “the legal union of two persons”).
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2009) (“The [four] factors . . . all point to an elevated level of scrutiny.”).21 The Department of Justice has reached the same conclusion, triggering its withdrawal from defending DOMA in this case and others. See Dkt. 39-2 at 2 (“Holder Letter”) (“Each of these [four] factors counsel in favor of being suspicious of classifications based on sexual orientation.”); see id. generally at 2-4.
1. Gay Men and Lesbians Have Experienced A History of Discrimination.
It is beyond dispute that “for centuries there have been powerful voices to condemn homosexual conduct as immoral,” Lawrence, 539 U.S. at 571, and that “state-sponsored condemnation” of homosexuality has led to “discrimination both in the public and in the private spheres.” Id. at 575. As described in the Expert Affidavit of George Chauncey, Ph.D (“Chauncey Aff.”), lesbians and gay men have suffered a long history of discrimination and condemnation, see SN-AF Nos. 22-29; Chauncey Aff. ¶¶ 17-55, and recent advances by gay men and lesbians in reversing some forms of de jure discrimination have been met with fierce and continuing backlash. SN-AF 30-32; Chauncey Aff. ¶¶ 56-98. To this day, lesbians and gay men are subjected to continued public opprobrium from leading political and religious figures, face the ever-present threat of anti-gay violence, and remain vulnerable in most states to discrimination in employment, housing, and public accommodations with no legal protections. SN-AF Nos. 3335. Even those who dispute that sexual orientation warrants heightened scrutiny do not deny that this factor is satisfied, nor has any court found to the contrary.
21As in Kerrigan, the Iowa Supreme Court in Varnum used the federal constitutional framework to guide its analysis under the state constitution. See 736 N.W.2d at 885-86.
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See Varnum, 763 N.W.2d at 889 (“The [government] does not, and could not in good faith, dispute the historical reality that gay and lesbian people as a group have long been the victim of purposeful and invidious discrimination because of their sexual orientation.”); Kerrigan, 957 A.2d at 432; Holder Letter at 2.
2. Sexual Orientation is Unrelated to the Ability to Contribute to Society.
Likewise, there can be no credible dispute about whether sexual orientation bears a relation to one’s “ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973). The psychological and medical community has long confirmed that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities,’” Expert Affidavit of Letitia Anne Peplau, Ph.D ¶ 30 (“Peplau Aff.”) (quoting 1973 Resolution of the American Psychological Association). The House admits that gay men and lesbians serve in Congress, in the federal judiciary, and in the Executive Branch as well. SN-AF No. 39. Moreover, empirical evidence and scientifically rigorous studies have consistently found that lesbians and gay men are as able as heterosexuals to form loving, committed relationships. SN-AF No. 42. The Plaintiffs here amply illustrate this: they include public servants like a postal worker, a librarian, a nurse, a social worker, teachers, stay-at-home parents, a human resources professional, U.S. Navy veterans, a retired civilian Navy intelligence officer, and a government attorney. They have made the commitment to form families and, like millions of their fellow gay men and lesbians, are similarly woven into the fabric of everyday America, leading productive lives as spouses, family members, friends, neighbors,
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coworkers, and citizens. See generally SN-AF Nos. 42-43, 54; Peplau Aff. ¶ 31. 3. Gay Men and Lesbians Face Significant Obstacles to Achieving Protection from Discrimination Through the Political Process.
Courts may also examine whether a group is a “minority or politically powerless,” Lyng, 477 U.S. at 638, although the Supreme Court has held classifications subject to heightened scrutiny absent such a showing. See Frontiero, 411 U.S. at 685-86 (noting that “when viewed in the abstract, women do not constitute a small and powerless minority,” but nonetheless holding that sexbased classifications should be subject to heightened scrutiny); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (discrimination against majority racial groups subject to strict scrutiny). Political power can be defined as “a person’s or group’s demonstrated ability to extract favorable (or prevent unfavorable) policy outcomes from the political system.” Expert Affidavit of Gary M. Segura Ph.D ¶ 13 (“Segura Aff.”). “Gay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interests.” Id. ¶ 8; SN-AF Nos. 5859, 63-64.
The obstacles to political power for gay men and lesbians are manifold. Gay men and lesbians are both nationally and locally a minority; a recent study estimates the population at approximately 3.5%. SN-AF Nos. 55-56; Segura Aff. 45. In addition, they are geographically dispersed, and, unlike many minorities, may go unidentified out of fear of ostracism and even violence, further eroding the potential for political mobilization. Id. ¶¶ 49, 56-64. Public hostility and
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prejudice, as measured by objective political science survey tools, is markedly more pronounced than toward any other minority group but atheists and undocumented aliens, and is openly exploited by politicians for political support. Id. ¶¶ 69, 72-74. And political opposition to legal protections and benefits for gay men and lesbians is powerful, mobilized, and well-funded, as illustrated by the coast-to-coast campaigns those opponents are able to wage and win, including ballot measure repeals of marriage rights in California and Maine. Id. ¶¶ 79-80.
Evidence also abounds that the political process alone provides gay men and lesbians with inadequate protections. For example, there is no federal prohibition against discrimination based on sexual orientation in employment, housing, public accommodations, or education, id., nor any such protection in 29 states. SN-AF Nos. 67, 70. Anti-marriage statutes or constitutional amendments have been passed by 41 states. SN-AF No. 71. Gay men and lesbians cannot adopt children in five states. Segura Aff. ¶ 39. Openly gay officials are seriously underrepresented in political office in proportion to the gay and lesbian population. SN-AF No. 74; Segura Aff. ¶¶ 45-47. And the relentless use of ballot initiatives (more than used against any other group in history) continually circumscribes rights gained or imposes new restrictions on gay and lesbian people around the country. SN-AF Nos. 64-65; Segura Aff. ¶¶ 40-44.
That there have been some modest or even important political initiatives in recent years that have helped mitigate the discrimination against lesbians and gay men does not alter this analysis. SN-AF No. 61; Segura Aff. ¶¶ 15-17. Many were won through the courts. See, e.g., Lawrence, 539 U.S. 558; Romer, 517 U.S.
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620; Kerrigan, 957 A.2d 407; Varnum, 763 N.W.2d 862. Until 2009, when sexual orientation was added to federal anti-hate crime legislation, no federal legislation had ever existed to protect individuals on the basis of sexual orientation. Segura Aff. ¶ 31. The new protection passed only as a rider to the Defense Appropriations Bill, and even then garnered substantial opposition. Id. Additional progress recently – including repeal of the military’s ban on lesbian and gay service members by a lame-duck congress following two judicial findings of unconstitutionality, see Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010); Witt v. U.S. Dep’t of Air Force, 739 F. Sup. 2d 1038 (W.D. Wash. 2010), while important, hardly demonstrates meaningful political capital – particularly as there was overwhelming popular support for repeal long before any legislative progress was made. SN-AF No. 69; Segura Aff. ¶ 32. Moreover, eliminating express, de jure discrimination, such as “Don’t Ask, Don’t Tell,” hardly constitutes evidence of affirmative political power. SN-AF No. 61; Segura Aff. ¶ 25.
Taken as a whole, these facts show a pervasive and intractable pattern of political obstacles. At a minimum, gay men and lesbians “presently have no greater political power – in fact, they undoubtedly have a good deal less such influence – than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection.” Kerrigan, 957 A.2d at 452 (citing Frontiero, 411 U.S. at 688); Holder Letter at 3 (same); Varnum, 763 N.W.2d at 894; see also SN-AF No. 66.
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4. Sexual Orientation Is an Enduring and Defining Characteristic of a Person’s Identity.
Although not necessary to trigger heightened scrutiny, see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (resident aliens are suspect class notwithstanding ability to opt out of class voluntarily), courts are particularly suspicious of laws that discriminate based on “obvious, immutable, or distinguishing characteristics that define [persons] as a discrete group.” Bowen, 483 U.S. at 602. This stems from the “basic concept of our system that legal burdens should bear some relationship to individual responsibility.” Frontiero, 411 U.S. at 686 (quotation marks omitted). A law therefore warrants heightened scrutiny if it imposes a disability based on a characteristic that a person cannot, or should not be asked to, change.
Courts have increasingly acknowledged that sexual orientation is just such a defining characteristic, forming an integral part of one’s identity. See Lawrence, 539 U.S. at 576-77 (“the protected right of homosexual adults to engage in intimate, consensual contact . . . [represents] an integral part of human freedom”); Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“[O]ur decisions have declined to distinguish between status and conduct in this context.”). Given that (1) the purpose of the immutability inquiry is to assess whether a person can reasonably change the characteristic to avoid discrimination, and (2) the acknowledged centrality of sexual orientation to a person’s identity, a variety of courts agree that even absent a showing that sexual orientation is absolutely immutable, it would work a fundamental injustice to ask gay men and lesbians to chose between retaining their identity and somehow
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changing to gain parity with their heterosexual brethren. E.g., Varnum, 763 N.W.2d at 893; Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008); cf. also Holder Letter at 3 (“[I]t is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination.”); Christian Legal Society, 130 S. Ct. at 2990; see also SN-AF Nos. 76, 87. In sum, “[t]his prong of the suspectness inquiry surely is satisfied when, as in the present case, the identifying trait is so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it].” Kerrigan, 957 A.2d at 438.
Moreover, there is a widespread scientific consensus, increasingly adopted by courts, that sexual orientation is immutable under any reasonable interpretation of that term. See id. at 436-37 (while courts reach a variety of conclusions, “many, if not most, scholarly commentators” find sexual orientation immutable); SN-AF No. 77. Although there is not yet scientific agreement on what factors cause sexual orientation, studies consistently show that most adults report having sexual attractions to and experiences with members of only one sex. SN-AF Nos. 78-79. The prevalence of long-term relationships among both heterosexuals and gay men and lesbians provides further evidence of the stability of sexual orientation over time. SN-AF No. 43;. Peplau Aff. ¶¶ 21-23. Studies also reveal that “the vast majority” of gay men and lesbians report to researchers that “they experienced no choice or very little choice about their sexual orientation.” Id. ¶ 25. And, as one judge has observed, “[s]cientific proof
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aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.” Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in the judgment).
Those who disagree with this scientific consensus often cite anecdotal evidence of religious or therapeutic “cures” to homosexuality, but these do not withstand scientific scrutiny. A recent American Psychological Association (“APA”) task force concluded that “efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.” Peplau Aff. ¶ 26; SN-AF No. 83. Participants in studies continued to experience same-sex attractions and did not report verifiable, significant change to other-sex attractions. Peplau Aff. ¶ 26 n.14. Critically, the APA task force found evidence that many who unsuccessfully attempt to change their sexual orientation experience considerable psychological distress. Peplau Aff. ¶ 26. It is little surprise then that no major mental health professional organization has approved interventions to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments. SN-AF No. 84; Peplau Aff. ¶ 27.
Given this unified chorus from the scientific community and the absence of any substantial evidence to the contrary, there can be little doubt that sexual orientation is entirely or largely immutable. Kerrigan, 957 A.2d at 437 (“we do not doubt that sexual orientation—heterosexual or homosexual—is highly resistant to change”); Varnum, 763 N.W.2d at 893; Holder Letter at 3 (“a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable”).
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Whether it is impossible to change one’s sexual orientation, or “only” extraordinarily rare and likely very psychologically harmful, Peplau Aff. ¶ 26 & n. 14, laws that discriminate on that basis warrant heightened scrutiny.
B. DOMA Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships.
Heightened scrutiny is also warranted on a separate, independent ground. All of the Plaintiffs are (or were until widowed) legally married. DOMA selectively burdens the integrity of those most intimate family relationships and disadvantages them relative to others. First, by its sweeping reclassification of the Plaintiffs as “single” for any and all federal purposes, DOMA erases their marriages under federal law. Second, by throwing Plaintiffs’ marriages into a confusing legal status in which their marriages “count” for some purposes but not others, DOMA erases much of the meaning their marriages would otherwise have – in both public and private settings – and relegates them to second-class status. SUF Nos. 12, 37, 46, 54, 63, 72. DOMA should thus face heightened scrutiny for the additional reason that it disparately burdens Plaintiffs’ constitutionally protected interest in the integrity of their families.
Classifications that disparately burden fundamental rights – such as family integrity – demand heightened Equal Protection scrutiny regardless of whether those disadvantaged (in this case, married same-sex couples) constitute a class that would otherwise trigger heightened review. See, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986) (discrimination among veterans depending on whether they entered service from New York requires strict scrutiny due to effect on right to travel); Harper v. Virginia State Bd. of Elections,
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383 U.S. 663, 672 (1966) (poll tax subject to strict scrutiny due to effect on right to vote); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659-60 (1994) (law discriminating between different types of media subject to intermediate scrutiny due to impairment of First Amendment rights); Ramos v. Town of Vernon, 353 F.3d 171, 176 (2d Cir. 2003) (restriction on minors’ right to free movement subject to intermediate scrutiny).
The right to maintain family relationships free from undue government restrictions is a long-established and fundamental liberty interest. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (acknowledging “freedom of personal choice in matters of marriage and family life”) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)); Stanley v. Illinois, 405 U.S. 645, 651-52, 658 (1972) (denying non-marital father an opportunity to resume custody on mother’s death results in “dismemberment of his family”); Lawrence, 539 U.S. at 574 (confirming that “persons in a homosexual relationship may [also] seek autonomy” for “personal decisions relating to marriage, procreation, . . . family relationships, child rearing, and education”); Riviera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982) (half-sister and foster parent to halfbrother and -sister had due process liberty interest in “preserving the integrity and stability of their extended family”).
Indeed, even if the familial interests at stake for Plaintiffs were somehow not considered “fundamental,” they are clearly of great importance, which under existing law must inform the level of review. See, e.g., Bush v. Gore, 531 U.S. 98, 104 (2000) (holding that despite the absence of fundamental right to vote for
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President, voters were entitled to “equal dignity,” and disparate recount standards violated the Equal Protection Clause); M.L.B. v. S.L.J., 519 U.S. 102, 120, 127 (1996) (holding that although there is no fundamental right to appeal state judicial determinations, barriers to appeal by an indigent appellant in parental termination proceeding violated the Equal Protection Clause); Plyler, 457 U.S. at 219-21 (holding that although illegal aliens are not a suspect class and public education is not fundamental right, the importance of the interest in education warrants striking down measure restricting access to public school); Witt, 527 F.3d at 816 (applying intermediate scrutiny in challenge to military’s “Don’t Ask, Don’t Tell” policy because it impinged on liberty interest recognized in Lawrence).
Plaintiffs have married and formed families. Yet those family relationships are burdened by Defendants’ wholesale refusal to afford their marriages any legal recognition; Plaintiffs are unable to enjoy many of the benefits of marriage that “constitute ordinary civic life in a free society” and that are taken for granted by different-sex married couples. Romer, 517 U.S. at 631. DOMA does not merely deprive Plaintiffs of discrete selected federal “benefits” (although it does), it sweeps so broadly and indiscriminately as to effect a change of their legal status – sundering the whole and converting them from “married” to “single” for all federal purposes. In so doing, it strips Plaintiffs’ closest familial relationships of much of their legal meaning, depriving them not only of the multitude of rights and benefits that accrue to marriage under federal law, but also of the unique public validation, social recognition, respect, support, and private and personal
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value that come with marriage. Peplau Aff. ¶¶ 34-37. Section 3 even conscripts Plaintiffs into denying the existence of their own marriages through civil and criminal statutes that prohibit them from acknowledging those marriages in dealings with the federal government, such as on federal forms. SUF Nos. 54, 63.
This enforced reclassification of Plaintiffs’ closest and most intimate family relationships by the federal government interferes with Plaintiffs’ relationships beyond the federal programs specifically at issue by signaling that their marriages lack full legal effect, thereby causing confusion among third parties and inviting private disrespect for Plaintiffs’ relationships. In short, by complicating what should be perfectly simple, imposing confusion and stigma, and undermining the legal effect of State-sanctioned marriages, DOMA substantially burdens Plaintiffs’ fundamental interest in their existing family relationships. This wholesale undermining of their State-sanctioned family relationships necessitates heightened scrutiny. II. DOMA FAILS HEIGHTENED SCRUTINY
For a classification to survive heightened scrutiny (whether “strict” or “intermediate”), it must be “tailored to serve a compelling state interest,” or in the very least be “substantially related” to an “important government objective.” Cleburne, 473 U.S. at 440-41. The Court must undertake a “searching analysis,” and uphold the challenged classification only on the basis of an “exceedingly persuasive justification.” United States v. Virginia, 518 U.S. at 537; Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982). Classifications based on “overbroad generalizations,” stereotypes and “knee jerk reactions” will not be upheld. United States v. Virginia, 518 U.S. at 532-33; Ramos, 353 F.3d at 187
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(striking down town ordinance imposing curfew on juveniles as insufficiently tied to town’s policy objectives).
Finally, any objective proffered by the government must be the actual, contemporaneous reason for a law, and not one invented by the government’s counsel afterwards. See United States v. Virginia, 518 U.S. at 533 (rationale “must be genuine, not hypothesized or invented post hoc in response to litigation”).
As explained in Part III.C, infra, none of the justifications that Congress offered at the time it enacted DOMA satisfies even rational basis review. They are certainly not sufficient to withstand the “searching analysis” required for heightened scrutiny. As for purported justifications offered more recently during litigation, these are plainly invented after-the-fact, and so are per se insufficient to uphold the statute. See United States v. Virginia, 518 U.S. at 535-36. For these reasons, DOMA is unconstitutional as applied to Plaintiffs. III. DOMA FAILS EVEN RATIONAL BASIS REVIEW
DOMA also cannot be sustained under rational basis review. That test requires that classifications be “rationally related” to a “legitimate” government interest. Cleburne, 473 U.S. at 446; U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973). Courts must ensure that disadvantages are not imposed arbitrarily or for improper reasons. Romer, 517 U.S. at 634-35 (striking down measure based on “bare desire to harm” gay and lesbian persons); Soto-Lopez v. New York City Civil Service Comm’n, 755 F.2d 266, 278 (2d Cir. 1985) (civil service provision improperly favored long-term residents over new ones), aff’d, 476 U.S. 898 (1986). DOMA does precisely that, and in the process utterly disregards 200 years of federalist tradition. It cannot withstand any level of review.
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A. A Uniform Federal Definition of Marriage Contrary to State Law Is Contrary to the Federalist System of Dual Sovereignty.
At the outset, any claims that the federal government has an interest in a federal definition of marriage – whether to promote some preferred family law policy, to advance “traditional” marriage and biological procreation, or to further some newly-discovered interest in “consistency,” see infra (discussing each individually) – share a common characteristic: encroachment by the federal government into an area traditionally reserved entirely to the states. The federal government has no business making family law directly, and has never before tried to do so indirectly by adopting a uniquely “federal” definition of marriage contradicting state law.
Under rational basis review, this matters for two reasons, involving the legitimacy of the House’s asserted rationales, and the extent of the review engaged in by the Court. First, as described in Part III.B infra, one of the requirements of rational basis review is that an interest must be “properly cognizable” by the level of government asserting it, and “relevant to interests” it “has the authority to implement.” Bd. Of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 366 (2001) (quoting Cleburne, 473 U.S. at 441). Because of the constitutional allocation of authority over marriage to the States, Congress’s mere desire to countermand State family law policies with which it disagrees fails to satisfy this requirement. Second, under rational basis review, anomalous and unprecedented legislation receives less deference; the “absence of precedent for” an invidious classification “is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether
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they are obnoxious to the constitutional [equal protection] provision.’” Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). DOMA represents precisely such a radical break demanding thorough consideration.
As to federal interest, regulation of marriage, of course, has “long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). The power to establish criteria for marriage, and to issue determinations of marital status, lies at the very core of the States’ sovereign authority.22 The Supreme Court has made this point repeatedly and emphatically. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (“[t]he whole subject of the domestic relations . . . belongs to the laws of the States and not to the laws of the United States”) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); United States v. Morrison, 529 U.S. 598, 617 (2000) (regulation of marriage touches on the police power, “which the Founders denied the National Government and reposed in the States….”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); id. at 716 (Blackmun, J., concurring) (“declarations of status, e.g. marriage, annulment, divorce, custody, and paternity” lie at the “core” of domestic relations law reserved to States); Sosna, 419 U.S. at 404; Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877) (State has the “absolute right to prescribe the
22State power over marital relations is, to be sure, itself bounded by the Constitution. See, e.g., Turner v. Safley, 482 U.S. 78 (1987) (holding unconstitutional State marriage law limiting ability of prisoners to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (holding unconstitutional State marriage law limiting access to marriage based on financial status); Loving v. Virginia, 388 U.S. 1 (1967) (holding unconstitutional State marriage law limiting access to marriage based on race).
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conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved”), overruled on other grounds, Shaffer v. Heitner, 433 U.S. 186 (1977). Even when the Supreme Court has been divided on the scope of federal power vis-à-vis the States, it has unanimously reaffirmed that regulation of familial relations, including marriage, remains beyond the scope of federal power. See, e.g., United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting reading of Commerce Clause that could lead to federal regulation of “family law (including marriage, divorce, and child custody),” an area “where States historically have been sovereign”); accord id. at 585 (Thomas, J., concurring); id. at 624 (Breyer, J., dissenting). Our federal system divests the federal government of the power to establish marital eligibility criteria. Accordingly, the federal government’s mere desire to advance its preferred criteria indirectly cannot form a “valid” or “legitimate” justification for equal protection purposes.
DOMA uniquely breaks from our federalist tradition with respect to family law by rewriting wholesale the U.S. Code, the Code of Federal Regulations, and various other rules to disadvantage married same-sex couples.23 Through its sheer breadth, DOMA, as a practical matter, arrogates to the federal government a substantial portion of the power – previously exercised only by the States – to say who is married and who is not. Moreover, it does so in a manner that
23Prior to DOMA, there had been only six other such “Rules of Construction” sweeping across the entire federal code – defining “[w]ords denoting number, gender, and so forth”; “county”; “vessel”; “vehicle”; “company”; and “products of American Fisheries” – and the section had not been amended since 1951. U.S.C.A., T.1, Ch.1.
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repudiates the family law of certain States while vindicating the law of others, which raises additional constitutional concerns. Cf. Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2512 (2009) (law that “differentiates between the States” must be justified by a showing the difference is “sufficiently related to the problem it targets” given the “historic tradition that all States enjoy equal sovereignty”) (internal citation omitted).
Moreover, a “federal” definition of marriage for all purposes is unprecedented in our history. SN-AF Nos. 18-19; Expert Aff. of Nancy F. Cott., Ph.D (“Cott Aff.”), ¶¶ 9-10, 88. Despite the often dramatically different family law policies the States have pursued over time, federal reliance on State determinations of marital status is a longstanding tradition – implemented in federal common law, countless federal statutes, and federal regulations. This includes programs directly affecting Plaintiffs, for example: federal income taxation, see, e.g., Dunn v. Comm’r, 70 T.C. 361, 366 (1978) (referencing number of decisions “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”)24; federal employee benefits, see 5 C.F.R. § 843.102 (defining “spouse” by reference to State law); and Social Security lump sum death benefits, see 42 U.S.C. § 416(h)(1)(A)(i) (“[a]n applicant is the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would
24See also Lee v. Comm’r, 64 T.C. 552, 556 (1975) (“existence and dissolution [of marriage] is defined by State rather than Federal law”), aff’d, 550 F.2d 1201 (9th Cir. 1977); Von Tersch v. Comm’r, 47 T.C. 415 (1967) (same for joint filing).
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find such applicant and such insured individual were validly married”).25 Indeed, even in the absence of such express incorporation, the well-established rule has been that federal law affords recognition to familial status determinations as governed by the law of the relevant State. As the Supreme Court recognized in DeSylva v. Ballentine, 351 U.S. 570, 580 (1956), “[t]he 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 when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.” Id.; see also, e.g., Spearman v. Spearman, 482 F.2d 1203, 1204-05 (5th Cir. 1973) (Federal Employees’ Group Life Insurance Act); United States v. Sacco, 428 F.2d 264, 266 & n.1 (9th Cir. 1970) (1855 immigration statute conferring citizenship on women “married to a citizen of the United States”). Federal law governing eligibility for marriage, on the other hand, has been limited to exceptional narrow situations in which the federal government itself has exercised the police power, such as the administration of the District of Columbia or of the territories, see e.g. Reynolds v. United States, 98 U.S. 145, 166 (1878), or the Freedmen’s Bureau, which briefly regulated marriage when southern states had not yet reconstituted their
25Examples are endless. See, e.g., 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).
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governments. See SN-AF No. 14; Cott Aff. ¶¶ 74-80.26 The scope of federal programs is ultimately a question of federal law. But
the historic federal practice of looking to and incorporating State law to
determine marital status reflects a reality of the federal system of dual
sovereignty: States, not the federal government, have responsibility over family
law, and the federal government rarely if ever has a valid interest in disregarding
determinations of family status made by the States, even within the scope of
federal rights or federal programs. DOMA may pay lip service to federalist
concerns by limiting its application to federal law, but there is no mistaking the
reality of what it does: leverage the vast size and reach of the federal government
in order to implement an all-purpose, “national” family law. As a practical matter,
DOMA eviscerates the historic power of the States to say who is “married.” The
concerns that such an exercise of federal power raises for the system of dual
sovereignty, and its departure from centuries of federalist tradition, require close
scrutiny of the interests advanced by Defendants to overcome an equal protection challenge.27
B. Rational Basis Review is Not “Toothless” None of the interests asserted on behalf of DOMA are capable of satisfying
26Congress has contemplated regulating marriage in the past, but when it has done so, it has not been by legislation but by proposing constitutional amendments – tacitly acknowledging that regulating marriage is beyond the scope of its legislative powers. See Cott Aff. ¶¶ 29-30; see also Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611 (2004). 27In the very least, for all of these reasons, the challenged portion of DOMA in no way promotes “state sovereignty,” another interest proffered by Congress. See H. Rep. at 16-18. The Court need not decide whether this interest would be sufficient to justify Section 2 of DOMA, which is not at issue in this litigation.
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the requirements of rational basis review: legitimacy, logic, and plausibility. Although less exacting than heightened scrutiny, rational basis review is not “toothless.” Matthews v. de Castro, 429 U.S. 181, 185 (1976). First, although such review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” FCC v. Beach Communication, Inc., 508 U.S. 307, 313 (1993), the interest claimed must still be “legitimate.” As discussed with respect to the federal government’s lack of a cognizable interest in regulating marriage in Part III.A supra, that means that a governmental interest must be more than a proper basis for government action in the abstract. It also means “properly cognizable” by the governmental body asserting the interest, Cleburne, 473 U.S. at 448, and “relevant to interests” the classifying body “has the authority to implement.” Garrett, 531 U.S. at 366 (2001) (quoting Cleburne, 473 U.S. at 441); see also Plyler, 457 U.S. at 225 (overturning State law discriminating against aliens and noting that although it is a “routine and normally legitimate part of the business of the Federal Government to classify on the basis of alien status . . . only rarely are such matters relevant to legislation by a State”) (internal quotation marks omitted); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976) (“[I]ndividuals within a particular group may not be subjected to disparate treatment on criteria wholly unrelated to any legitimate governmental interest.”); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 114-15 (1976) (Civil Service Commission could not justify rule barring employment of aliens because asserted interests in encouraging nationalization were “not matters which are properly the business of the Commission”). As demonstrated above, this concern is particularly acute here,
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where the federal government has legislated regarding determination of marital status, a quintessential State, rather than federal, concern. See Part III.A, supra.
Second, the classification must be “narrow enough in scope and grounded in sufficient factual context … to ascertain some relation between the classification and the purpose it serve[s].” Romer, 517 U.S. at 632-33. While the classification need not be perfect, it still “must find some footing in the realities of the subject addressed by the legislation,” Heller v. Doe, 509 U.S. 312, 321 (1993), and 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.” Cleburne, 473 U.S. at 446; Garrett, 531 U.S. at 366 n.4 (measure will fail rational basis review where the “purported justifications . . . ma[k]e no sense in light of how the [government] treat[s] other groups similarly situated in relevant respects”). As the Supreme Court made clear in Romer, rational basis review will invalidate a measure whose “sheer breadth” is “discontinuous with the reasons offered for it . . . .” 517 U.S. at 632; see also, e.g., Crawford v. Cushman, 531 F.2d 1114, 1123 (2d Cir. 1976) (striking down Marine Corps’ policy of discharging all pregnant women as both over- and under-inclusive).
Third, although the government may not bear the same burden of proving facts supporting a measure as under heightened scrutiny, the requirement of a “reasonably conceivable state of facts” still demands that the claimed factual basis for a categorization be plausible. A measure will fail rational basis review “when all the proffered rationales for a law are clearly and manifestly implausible.” Lofton v. Sec’y of Dep’t of Children & Family Servs., 377 F.3d 1275,
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1280 (11th Cir. 2004) (Birch, J., concurring); accord Romer, 517 U.S at 635 (rejecting justifications where “[t]he breadth of the [measure] is so far removed from these particular justifications that we find it impossible to credit them”); Eisenstadt v. Baird, 405 U.S. 438, 449 (1972) (law discriminating between married and unmarried persons in access to contraceptives “so riddled with exceptions” that the interest claimed by the government “cannot reasonably be regarded as its aim”); Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001) (invalidating law where government’s proffered rationale “surely approached” “the limits of rational speculation”) (internal quotation marks and citations omitted).
As previously explained, when Congress enacted DOMA, it made clear that it was doing so in order to: “encourage[e] responsible procreation and childrearing,” “defend[] and nurture the institution of traditional heterosexual marriage,” “preserve[] scarce government resources,” and “reflect[] and honor a collective moral judgment about human sexuality.” Supra at Statement of Facts, Part C. During litigation, the House has also purported to discover new interests in continuing federal use of the “historic” definition of marriage and in “consistent” treatment of all same-sex couples nationwide. See Golinski MTD at 23-25.28 As shown below, none of these justifications is remotely sufficient to survive rational basis review.
28Plaintiffs requested the House to identify during discovery in this case the bases that it contends support DOMA, but it has categorically refused to even identify what its contentions are. See Buseck Ex. G (House’s Responses to Plaintiffs’ Interrogatories) at Responses No. 1 and 2. Therefore, Plaintiffs respond herein to arguments the House has raised in other litigation challenging the constitutionality of DOMA.
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C. No Contemporaneous Interest Mentioned by Congress Is Sufficient to Uphold DOMA.
None of Congress’s actual, contemporaneous rationales can rationally support DOMA’s invidious classification against married same-sex couples.
1. DOMA Does Not Promote “Responsible Procreation and ChildRearing.”
Congress’s purported interest in encouraging “responsible procreation and child-rearing” as a justification for DOMA does not withstand any level of review. Long before DOJ determined that DOMA was subject to heightened scrutiny, it disavowed this justification as a basis to uphold the statute, in light of the overwhelming consensus “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.” Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 388-89 (D. Mass. 2010); id. at n.106 (noting DOJ agreement on this point); SN-AF Nos. 48-49; accord Expert Affidavit of Michael Lamb, Ph.D (“Lamb Aff.”), ¶¶ 28-31. This consensus has been recognized and adopted by the states in which the Plaintiffs live, each of which has determined that including same-sex couples in marriage promotes child welfare. See, e.g., Kerrigan, 957 A.2d at 475. DOMA represents an attempt by Congress to replace these determinations with its own policy judgments regarding which married parents are most suitable and provide optimal childrearing arrangements. But Congress’s bare desire to countermand state family
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law does not give rise to any cognizable federal interest to justify discrimination.
See Part III.A, supra.29
Moreover, even if Congress did have a legitimate interest in
countermanding state marriage laws, DOMA does not promote the child welfare
goals that Congress purported to adopt. Refusing to recognize Plaintiffs’ lawful
marriages “does nothing to promote stability in heterosexual parenting,” Gill, 699
F. Supp. 2d at 389, and according Plaintiffs’ marriages equal weight under federal
law would not “deprive opposite sex couples of any rights,” Kerrigan, 957 A.2d at
473, or “affect the number of opposite sex couples who marry, divorce, cohabit
[or] have children outside of marriage. . . .” Perry, 704 F. Supp. 2d at 971; see
also Part III.C.2, infra (discouraging same-sex couples from marrying will not lead
them to enter into healthy heterosexual marriages).
Nor does DOMA prevent same-sex couples from having children. Indeed,
like many same-sex married couples, a number of the Plaintiff couples have
children – three in the Artis, Kleinerman-Gehre, and Savoy-Weiss families each –
that they either bore or adopted. All that DOMA does is harm these families in
29This is not to say that the federal government has no cognizable interest in promoting child welfare. For example, it plays a vital role in protecting children who cross state lines, notably through the Parental Kidnapping Prevention Act (PKPA), which requires states to enforce each other’s lawful child custody decrees and thereby prevents children from being caught in “jurisdictional deadlocks” between competing states. See 28 U.S.C. § 1738A; Thompson v. Thompson, 484 U.S. 174, 178 (1988). But the PKPA, unlike DOMA, does not take sides in any ongoing policy debate in the states about what is an “optimal” family structure, instead offering evenhanded protection to all families. DOMA and the PKPA are in fact at cross purposes – where the PKPA promotes certainty and stability, DOMA sows confusion, by casting doubt on the integrity of existing families based on the federal government’s disagreement with state policy choices regarding marriage and family formation. See Part I.B, supra.
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two ways: first, by depriving these children, and the other children that same-sex couples already have, of “the immeasurable advantages that flow from the assurance of a stable family structure when afforded equal recognition under federal law.” Gill, 699 F. Supp. 2d at 388 (quotation omitted). And second, by depriving these children of the financial benefits that would accrue to their families – for example as a result of the more favorable tax treatment that many married couples receive. See, e.g. Artis Aff. ¶ 21 (family could use tax savings for household expenses and children’s extracurricular activities); Kleinerman-Gehre Aff. ¶ 16 (family could save money for sons’ education); Lamb Aff. ¶ 41 (explaining that children of same-sex married couples would benefit materially from recognition of their parents’ marriages); see also SN-AF No. 53. DOMA’s discrimination against these families “works a real and appreciable harm” on their children in both dignitary and material ways – without benefiting the children of heterosexual couples. See Kerrigan, 957 A.2d at 474.
Meanwhile, even as it excludes married same-sex couples with children from all federal marriage-related rights and benefits, the federal government continues to recognize and afford these same rights and benefits to different-sex couples who, for whatever reason, are childless. In fact, “the ability to procreate [or raise children] is not now, nor has it ever been, a precondition to marriage in any state in the country.” Gill, 699 F. Supp. 2d at 389 (quoting Lawrence, 539 U.S. at 605 (Scalia, J., dissenting)).30 On the contrary, the Constitution affirmatively
30Justice Scalia’s assertion accords with the conclusion of historians. See, e.g., SN-AF No. 10; Cott Aff., ¶ 14-23 (states have had many purposes in regulating marriage); id. at 21 (“The notion that the main purpose of marriage is to provide
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protects the right of married heterosexual couples not to procreate. See Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state law banning use of contraceptives by married couples). Moreover, DOMA does nothing to prevent recognition of the marriages of different-sex couples who want children but are infertile – and either choose to adopt or procreate in the same way that same-sex couples do, through assisted reproduction technologies.
Thus, DOMA has no rational relationship or plausible connection to the welfare of children. It is “at once too narrow and too broad.” Romer, 517 U.S. at 621. It deprives the children of same-sex married couples of the dignity and material benefits of recognizing their families, while at the same time extending marital benefits to millions of childless or infertile different-sex couples. Cf. Cushman, 531 F.2d at 1123 (Marine Corps policy of discharging all pregnant marines was not rationally related to legitimate goals of “mobility and readiness,” given that many of those discharged were still capable of serving, while nonpregnant marines with comparable temporary disabilities were not discharged).
DOMA’s only imaginable connection to the welfare of children is the extent to which it was intended actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents. Congress cited no medical, scientific, or social scientific evidence to support this conclusion – indeed, a consensus has formed that precisely the opposite is true. See Lamb Aff. ¶¶ 28-31. Congress acted, at best, on nothing more than bare
an ideal or optimal context for raising children was never the prime mover in states’ structuring of the marriage institution in the United States, and it cannot be isolated as the main reason for the state’s interest in marriage today.”).
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“unsubstantiated generalizations” about gay and lesbian parents, driven by moral disapproval for homosexuality. Such generalizations are not a rational basis for any discriminatory classification. See Cushman, 531 F.2d at 1124. And, in any event, if DOMA truly does represent an effort to prevent gay and lesbian couples from becoming parents, it must be subjected to heightened scrutiny because it disparately burdens the fundamental right to decide “whether to bear or beget a child.” See, e.g., Eisenstadt, 405 U.S. at 453 (overturning ban on sale of contraceptives to unmarried but not married individuals); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42 (1942) (overturning law requiring sterilization of certain types of criminals but not others in the same class). As explained above, DOMA cannot possibly survive this level of review.
2. DOMA Cannot Be Justified as Preserving “Tradition” For Its Own Sake.
Equally incoherent is the argument that DOMA somehow serves the goal of “defending and nurturing the institution of traditional, heterosexual marriage.” H. Rep. at 12. This platitude is so vague as to be close to meaningless, but suggests either (1) that Congress was worried that marriage would become less desirable to different-sex couples unless same-sex couples were excluded, or (2) that Congress simply wanted to maintain the existing exclusion of same-sex couples from marriage rights. The first formulation bears no rational relationship to what DOMA actually does; the second is invalid on its face. And neither, in any event, is a proper federal interest.
The first formulation of the “traditional marriage” justification – preserving the value and desirability of marriage to heterosexual couples – lacks any
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reasonable connection to what DOMA actually does. Not only is there no reason to believe that excluding same-sex couples from marital rights will have any effect on different-sex marriages, but DOMA is a step even further removed. It does not place any limitations on who can marry, it merely penalizes same-sex couples like Plaintiffs who have already married. There is no reason to believe that discriminating against such couples will cause more heterosexual couples to marry or strengthen existing heterosexual marriages. As the court found in Gill, such discrimination does not bear any “reasonable relation to any interest the government might have in making heterosexual marriages more secure.” 699 F. Supp. 2d at 389.31 Nor is there any conceivable “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.” Id. Far from “strengthening” marriage as an institution, such marriages often have profound negative consequences for the couple and their children. Peplau Aff. ¶ 24.
In short, this “traditional marriage” formulation is not “narrow enough in scope and grounded in sufficient factual context … to ascertain some relation between the classification and the purpose it serve[s].” Romer, 517 U.S. at 63233.
Without some independent benefit, what remains is tradition for its own sake. But preserving the exclusion of same-sex couples from federal marital
31Even if some different-sex couples might value their own actual or potential marriages more if same-sex marriages were treated as inferior under federal law, it would reflect nothing more than a bare desire to exclude same-sex couples. Accommodating such desires is not a legitimate basis for government action. See Palmore v. Sidoti, 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.”).
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benefits because they have “traditionally” been excluded in the past is not a constitutionally cognizable “interest.” As the Supreme Court cautioned in Romer, discriminatory classifications must serve some “independent and legitimate legislative end.” 517 U.S. at 633. Simply asserting a desire to maintain a “tradition” tautologically circles back to the challenged classification without justifying it. That is not a sufficient rational basis. See Kerrigan, 957 A.2d at 478; Perry, 704 F. Supp. 2d at 998; see generally Williams v. Illinois, 399 U.S. 235, 239 (1970) (“neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”).
Finally, even if preserving “traditional” marriage could be called an “interest,” it would not be a valid federal interest. Although the federal government may validly pursue federal policies through the many federal laws and programs that the federal government bases on marriage, the bare desire to regulate and define marriage itself in accordance with Congress’s own preferences, and contrary to the laws of the States, is a quintessential question of state concern. See Part III.A supra.
3. DOMA Does Not “Preserve Scarce Resources,” Which Is Not In any Event a Justification for Denying Rights Indiscriminately and Inequitably.
Nor can DOMA be supported by any interest in “preserving scare resources.” See H. Rep. at 18 (noting that Congress has “not undertaken an exhaustive examination” of financial protections related to marriage, even while asserting that “t[o] deny federal recognition to same-sex ‘marriages’ will thus preserve scarce government resources, surely a legitimate government
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purpose”). DOMA is utterly disconnected from any goal of resource preservation. In fact, in 2004, the Congressional Budget Office concluded that federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.32 See also SN-AF No. 21. So DOMA costs money rather than saves it. In any event, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis by the General Accounting Office. See 142 Cong. Rec. H7503-05 (daily ed. July 12, 1996). And DOMA sweeps in non-pecuniary as well as pecuniary benefits. See Note 3, supra. In short, financial considerations plainly were not an actual consideration in the passage of DOMA.
Even if that were not true, while “conserving the public fisc can be a legitimate government interest, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.” Gill, 699 F. Supp. 2d at 390 (internal quotations marks omitted; footnote omitted). Any denial of benefits to any group will always save resources, so the government must do more than state a desire to cut costs; it must justify why it chose a particular group to bear the burdens of cost-cutting, and “do more than justify its classification with a concise expression of intent to discriminate.” Plyler, 457 U.S. at 227; see also id. at 229 (cost-cutting could not
32See Congressional Budget Office, “The Potential Budgetary Impact of Recognizing Same-Sex Marriages,” Jan. 21, 2004, at 1 (Buseck Aff. Ex. E) (“In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget’s bottom line to a small extent; by less than $ 1 billion in each of the next 10 years (CBO’s usual estimating period).”)
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justify denying free public education to children of undocumented immigrants who “[i]n terms of educational cost and need . . . are basically indistinguishable from legally resident alien children”) (internal quotation marks omitted); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (“[a state] must do more than show that denying welfare benefits to new residents saves money”), overruled in part on other grounds, Edelman v. Jordan, 415 U.S. 651 (1974). Here, there is “no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress[’s] desire to express its disapprobation of samesex marriage.” Gill, 699 F. Supp. 2d at 390. This too is not rational.
4. Moral Disapproval of Homosexuality is Not a Valid Interest. In the final analysis, DOMA makes sense only as an attempt to express disapproval of gay people and same-sex couples. In fact, Congress said as much, namely that DOMA was passed to “reflect and honor a collective moral judgment about human sexuality” that “entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” H. Rep. at 15-16. This “interest” can be readily discarded as inconsistent with equal protection law. Discrimination for its own sake, based on bare disapproval for a particular group of citizens, is not a legitimate purpose on which a classification can be based: “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534; Gill, 699 F. Supp. 2d at 389; In re Levenson, 587 F.3d 925, 932 (9th Cir. 2009); Kerrigan, 957 A.2d at 479. “Mere negative
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attitudes, or fear, unsubstantiated by factors which are properly cognizable …, are not permissible bases” for governmental discrimination. Cleburne, 473 U.S. at 448.
The Supreme Court has already applied these principles to invalidate other laws predicated on moral disapproval of homosexuality. Lawrence v. Texas explicitly repudiated the notion that the government may uniquely disadvantage gay men and lesbians because of moral disapproval for same-sex intimate conduct. See 539 U.S. at 577. The majority quoted and adopted Justice Stevens’ dissent from Bowers v. Hardwick as the controlling analysis: “[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 that practice.” Id. (quotation marks omitted). Justice O’Connor elaborated in her concurrence: “Moral disapproval of a group cannot be a legitimate government interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law.’” Id. at 583 (O’Connor, J., concurring) (quoting Romer, 517 U.S. at 633).
In short, there is no “morality” exception to the equal protection of the laws, whether applicable to gay men and lesbians or to anyone else. Otherwise invidious classifications do not become constitutional simply because they further some notion of morality.33 Such claims amount to saying that the animus
33Classifications motivated by animus are typically formulated as expressions of moral disapproval. For example, laws against interracial relationships and women working outside the home were both defended on religious and moral grounds. See Loving, 388 U.S. at 3 (trial judge, who sentenced couple to 25 years for interracial marriage, based decision on God’s separation of the races);
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that motivated a law also serves as its justification. That does not work as a
constitutional matter.
D. No Post-Hoc Interest Asserted by the House In Litigation Is Sufficient to Uphold DOMA.
As Congress’s actual contemporaneous rationales for DOMA lack merit,
the House has in other cases discovered two post-hoc justifications for the law:
continuing the “historic” definition of marriage, and ensuring “consistency” in
federal rights and benefits. Neither passes the basic threshold of plausibility.
1. Continuing the “Historic” Limitation of Federal Marital Rights, Benefits, and Responsibilities to Opposite-Sex Couples is Not a Cognizable Interest.
DOMA cannot be justified by an interest in “adhering to the historic
definition” of marriage at the federal level by “us[ing] the definition of marriage
universally accepted in American law until just a few years ago.” See Golinski
MTD at 23. This is little more than a watered-down formulation of the “tradition”
argument, and fails for the same reasons.
First, as detailed supra, there is no “historic” federal definition of marriage
– federal law has traditionally tracked state law, and there is no independent
federal interest in having a “federal” family law separate and apart from that of
the states. DOMA changed historic federal practice rather than preserving it. See
Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., joined by Field and Swayne, JJ., concurring) (upholding refusal to admit women to practice law based on “divine ordinance”). The moral basis for such restrictions has since been recognized as illegitimate. See United States v. Virginia, 518 U.S. at 550; Palmore, 466 U.S. at 431-32. This is not to say that moral views are per se impermissible as a basis for legislation but rather that moral disapproval, standing alone, cannot function as a justification for imposing disadvantages on classes of persons. See Moreno, 413 U.S. at 534-35; Romer, 517 U.S. at 634; Lawrence, 539 U.S. at 583 (O’Connor, J., concurring).
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Parts III.A and III.C.2, supra. Second, this “interest” is tautological. Even if the federal government were adopting a restriction on marital eligibility mirroring restrictions previously used by the States, that is not a reason to impose such a restriction after the relevant States (i.e. those where married same-sex couples reside) have changed their marriage laws. At best, it is a description of what DOMA does without a reason. As the court recognized in Gill, in rejecting the Justice Department’s similar assertion of an interest in preserving the “status quo” in the face of changes to state marriage laws, “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.” Gill, 699 F. Supp. 2d at 393. Treating married same-sex married couples as unmarried simply because they could not have married in the past is not an independent or legitimate government interest.
2. DOMA Cannot Be Justified as Promoting “Consistency” In The Federal Treatment of Same-Sex Couples, Irrespective of Marital Status.
DOMA also cannot be justified by the House’s ex post facto assertion that a hypothetical Congress might have wanted to “avoid arbitrariness and inconsistency” in the eligibility criteria for federal marriage-based rights and benefits by making sure that married same-sex couples do not qualify for benefits unavailable to unmarried same-sex couples.34 The court in Gill rightly rejected
34The House has asserted this interest in other cases, and has claimed that this rationale was contemporaneous, based on a stray comment by then-Senator Ashcroft. See Golinski MTD at 5, 25. The rationale appears nowhere in the official Committee Report, however. In any event, because this rationale does not
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this argument, recognizing that any “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.” See 699 F. Supp. 2d at 395; accord Levenson, 587 F.3d at 933.
This rationale is so far divorced from both our federalist history and the federal government’s current practice as to deprive it of all credibility. There has always been substantial variation in state marital eligibility criteria for differentsex couples. SN-AF Nos. 4-8. The federal government neither treats married and unmarried different-sex couples alike irrespective of marital status, nor denies federal rights and benefits to married different-sex couples if they would have been unable to satisfy marital eligibility criteria in states other than the one in which they reside. For instance, the federal government does not treat couples in lawful common-law marriages, or couples too young or too closely related to marry in other states, as unmarried if they are lawfully married in the state in which they reside. SN-AF No. 18. And yet DOMA creates such a rule for samesex couples and same-sex couples only. Because the “consistency” rationale elevates like treatment of parties who are not similarly situated (married and unmarried same-sex couples living in different states) over like treatment of couples who are (married same-sex and different-sex couples), it is antithetical to the basic premises of equal protection law. See Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (“[t]he Equal Protection Clause requires that the government treat all similarly situated people
even survive rational basis review, it is irrelevant whether it was contemporaneous or not.
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alike”) (citing Cleburne, 473 U.S. at 439); Garrett, 531 U.S. at 366 n.4 (“purported
justifications . . . ma[k]e no sense in light of how the [government] treated other
groups similarly situated in relevant respects”).35 And even if there were some
interest in treating same-sex couples “consistently” irrespective of marital status,
that would still not justify treating them as inferior to different-sex couples, as
DOMA does.
The absence of a valid federal interest in having a “federal” marriage policy
is borne out by history. Although some states presently extend marital rights to
same-sex couples and others do not, such differences are a normal part of our
system of dual sovereignty.36 In accordance with their sovereign power over
family law in the federalist system, and their right to “experiment[] and exercis[e]
their own judgment in an area to which States lay claim by right of history and
expertise,” Lopez, 514 U.S. at 580-83 (Kennedy, J., concurring), the States have
changed marital eligibility requirements in many ways over time. SN-AF Nos. 6-7;
Cott Aff. ¶ 8 (“Despite the extent and frequency of states’ variation in definitions
of marriage, prior to 1996 the federal government never stipulated a uniform
35This is not to say that there are never cases in which the federal government may have an interest in remedying “inequalities” in federal law created by differing state laws. See, e.g., Ricards v. United States, 683 F.2d 1219, 1225 & n.17 (9th Cir. 1981) (approving estate tax treatment of community property to remedy “inequalities in the effect of the estate and gift taxes” that would otherwise arise between community property and non-community property states) (quoting S. Rep. No. 80-1013, at 26 (1948)). But DOMA amplifies, rather than ameliorates, the effect of state-to-state inequalities in marital eligibility criteria. 36The six States that currently extend marriage eligibility to same-sex couples represent a minority. However, “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory . . . .” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
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definition of marriage for purposes of federal law, and instead relied on states’ determinations.”); id. at ¶ 24.
Historically and to the present, “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.” Cott Aff. ¶ 25; SN-AF Nos. 5-7. State marriage laws arose and responded to local political and economic conditions, changes in the composition of the state’s residents, moral or religious reasons, and to economically compete with or distinguish themselves from other states. SN-AF No. 4; Cott Aff. ¶¶ 25-28. For instance, States have long had varying rules regarding the validity of marriage without a ceremony, that is, common-law marriages. While such marriages were common in early America, unwillingness to accept marriage without government oversight increased throughout the 19th century, particularly as concern about divorce rates motivated greater state regulation. Cott Aff. ¶¶ 32-36. Thirteen states continue to recognize common law marriage for some or all purposes today (as does the federal government). Cott Aff. ¶¶ 37-38.
Marriage across the color line is a major example of state variation. Some states strengthened bans at the end of the Civil War whereas later, other states added new “racial” designations or penalties. Cott Aff. ¶¶ 45-49. In 1948, in the wake of World War II’s emphasis on cultural and religious pluralism as national values, California’s Supreme Court struck down a state law that had prohibited marriages between whites and either blacks or Asians for nearly a century, and
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other states followed. Cott Aff. ¶¶ 55-56. This was an area of significant state variation until Loving v. Virginia, 388 U.S. 1 (1967). Cott Aff. ¶ 56.
Age is another example. In early America, States generally followed the English common law regarding the age for marriage (12 for women and 14 for men). Nineteenth-century reformers succeeded in raising the age in some states to an average of 16 for women and 18 for men. Cott Aff. ¶ 39. States still differ as to the minimum age for marriage. Cott Aff. ¶ 39-40. Other contested variations in state marriage laws arose from concerns about “fitness” to marry with new restrictions based on “eugenic” concerns about physical and mental health. Cott Aff. ¶ 42. There are also longstanding divisions between States about the permissibility of first cousin marriages, with the first ban appearing in 1858 and now 31 states banning it or imposing conditions on its validation. Cott Aff. ¶ 43.
This history illustrates that differences among the States in their policies regarding who can marry, contentious State-by-State social and cultural debates about shifting eligibility requirements, and a fluid and changing legal landscape as different States adopt different (and even conflicting) policies, are nothing new. State-to-State differences in marital eligibility are precisely what one would expect, and what has always happened in the past, in our system of dual sovereignty in which marriage policy is made at the State and not at the federal level. The longstanding incorporation of state marital status into federal law notwithstanding these many differences throughout our nation’s history demonstrates the absence of any real and sudden new federal interest in “consistency” in marital eligibility when it comes to gay men and lesbians, but no
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one else. SN-AF Nos. 18-19; see also Cott Aff. ¶¶ 38, 44, 57, 64, 88. In other cases, the House has grasped for straws trying to find a federal
interest in such uniformity, arguing that married same-sex couples are not similarly situated to married different-sex couples because their marital status can cause federal administrative “confusion.” See Golinski MTD at 25. This explanation defies credibility. There is no reason to believe that the federal government lacks the ability to distinguish legally married same-sex couples from unmarried ones. As the court in Gill held, “distribut[ing] federal marriagebased benefits to those couples that have already obtained state-sanctioned marriage licenses . . . . does not become more administratively complex simply because some of those couples are of the same sex.” 699 F. Supp. 2d at 395. DOMA’s creation of distinct “federal” and “state” marital statuses in fact creates confusion rather than remedies it. Given that the federal government already implements many rules regarding common-law marriages, see, e.g., 5 C.F.R. §§ 211.103, 831.613(e), 842.605, 1651.5; 20 C.F.R. §§ 10.415, 219.32, 222.13, 404.726; 28 C.F.R. § 32.3, it plainly is capable of the much less-complicated task of maintaining a list of the states that recognize marriages between same-sex couples and those that do not.37 And even if there were uncertainty about these
37The federal government must routinely make determinations of state residency in administering federal programs. See, e.g., 29 C.F.R. § 825.113 (marriage for FMLA purposes turns on law of state in which employee resides); 20 C.F.R. § 404.345 (marriage for Social Security benefit eligibility turns on location of permanent home at time of benefits application); 38 C.F.R. § 3.1(j) (veterans’ benefits); 20 C.F.R. § 222.11 (Railroad Retirement Act). To the extent the residency of same-sex couples may be relevant in assessing whether same-sex couples who report themselves as married are in fact legally wed, that is no
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issues, that is nothing that could not be easily cured with administrable guidelines for the relevant agencies. Any argument that the federal government has an interest in discriminating against married same-sex couples in order to ease its administrative burdens rings hollow.38
CONCLUSION As described above, Plaintiffs have each suffered harm because DOMA forbids the federal government to extend to them the same federal rights and benefits to which similarly-situated different-sex married couples are entitled. DOMA’s singling out lawfully married same-sex couples for disadvantageous treatment cannot survive any level of review under the Equal Protection guarantee, much less the heightened review that should be required here. For the reasons stated herein, Plaintiffs respectfully request that the Court GRANT the Motion.
different from any other residency determination routinely made in the administration of federal programs. 38Any suggestion that the result here is controlled by the Supreme Court’s summary ruling in Baker v. Nelson, 409 U.S. 810 (1972), is erroneous. Baker summarily affirmed a ruling by the Minnesota Supreme Court that a State’s marital eligibility law did not unconstitutionally discriminate on the basis of sex or violate the plaintiffs due process or privacy rights. See 191 N.W.2d 185 (Minn. 1972). Baker’s precedential value extends, at the very most, to ‘the precise issues presented and necessarily decided” by the Court in its summary ruling. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979). Here, both the facts and the Plaintiffs’ legal theory are far different, making Baker irrelevant.
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Respectfully submitted,
Joanne Pedersen & Ann Meitzen Gerald V. Passaro, II Raquel Ardin & Lynda DeForge Janet Geller & Joanne Marquis Suzanne & Geraldine Artis Bradley Kleinerman & James Gehre And Damon Savoy & John Weiss
By their attorneys,
/s/ Gary D. Buseck Gary D. Buseck

HORTON, SHIELDS & KNOX Kenneth J. Bartschi, #ct17225 kbartschi@hortonshieldsknox.com Karen Dowd, #ct09857 kdowd@hortonshieldsknox.com 90 Gillett St. Hartford, CT 06105 (860) 522-8338 Attorneys for Plaintiffs

GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck, #ct28461 gbuseck@glad.org Mary L. Bonauto, #ct28455 mbonauto@glad.org Vickie L. Henry, #ct28628 vhenry@glad.org Janson Wu, #ct28462 jwu@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 Attorneys for Plaintiffs

SULLIVAN & WORCESTER LLP David J. Nagle, #ct28508 dnagle@sandw.com Richard L. Jones, #ct28506 rjones@sandw.com One Post Office Square Boston, MA 02109 (617) 338-2800 Attorneys for Plaintiffs Suzanne & Geraldine Artis And Bradley Kleinerman & James Gehre
Dated: July 15, 2011

JENNER & BLOCK Paul M. Smith (of counsel) psmith@jenner.com Luke C. Platzer (of counsel) lplatzer@jenner.com Daniel I. Weiner (of counsel) dweiner@jenner.com Matthew J. Dunne (of counsel) mdunne@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2011, a copy of the foregoing Memorandum of Law in Support of Motion for Summary Judgment was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

/s/

Gary D. Buseck______________

Gar

y D. Buseck

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

______________________________________

)

JOANNE PEDERSEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL

)

MANAGEMENT, et al.,

)

)

Defendants.

)

_____________________________________ )

Case No. 3:10-cv-01750 (VLB)

MEMORANDUM OF LAW OF INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES IN SUPPORT OF ITS MOTION TO DISMISS

Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036
Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 2 of 67
TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................iii INTRODUCTION .................................................................................................. 1 BACKGROUND ...................................................................................................3
Plaintiffs ...................................................................................................3 The Defense of Marriage Act of 1996 .....................................................3 DOMA’s Legislative Branch History ......................................................5 DOMA’s Executive Branch History ........................................................10 ARGUMENT ........................................................................................................13 I. DOMA FULLY COMPLIES WITH THE CONSTITUTIONAL
GUARANTEE OF EQUAL PROTECTION. ....................................13 A. As an Act of Congress, DOMA Is Entitled to a Strong
Presumption of Constitutionality ........................................13 B. Binding Supreme Court Precedent Supports DOMA’s
Constitutionality. ..................................................................14 C. Rational Basis Review, Not Any Form of Heightened
Scrutiny, Applies to DOMA ..................................................18 1. DOMA Does Not Infringe the Fundamental Right to
Marriage. ........................................................................ 19 a. Same-Sex Marriage Is Not a Fundamental Right ..19 b. DOMA Implicates Federal Benefits, Not the Right
of Same-Sex Couples to Marry...............................23 2. DOMA Does Not Employ a Suspect or Quasi-
Suspect Classification .................................................26 D. DOMA Easily Satisfies Rational Basis Review...................31
1. Myriad Rational Bases Support DOMA .......................33
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a. Congress Rationally Could Have Acted with Caution in the Face of the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution ...................33
b. Congress Rationally Could Have Acted to Protect the Public Fisc and Preserve the Balance Struck by Earlier Congresses in Allocating Federal Benefits and Burdens. ............................................37
c. Congress Rationally Could Have Acted to Provide for Consistency in Eligibility for Federal Benefits Based on Marital Status..........................................39
d. Congress Rationally Could Have Acted to Avoid Creating a Social Understanding That Begetting and Rearing Children Is Not Inextricably Bound up with Marriage......................................................42
e. Congress Rationally Could Have Acted to Foster Marriages That Provide Children with Parents of Both Sexes...............................................................46
II. ANY REDEFINITION OF MARRIAGE SHOULD BE LEFT TO THE DEMOCRATIC PROCESS ...............................................53
CONCLUSION .....................................................................................................54
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TABLE OF AUTHORITIES Cases Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980).................................passim Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ..........................................17, 19 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ...............................14, 17 Agostini v. Felton, 521 U.S. 203 (1997) .............................................................18 Alexander v. Fioto, 430 U.S. 634 (1977) ............................................................24 Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006)........................................passim Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y. Sup. Ct. 1971)...............21 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)..........................................................passim Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).................................................passim Baker v. Nelson, 409 U.S. 810 (1972) ................................................................14, 15 Baker v. State, 744 A.2d 864 (Vt. 1999) .............................................................29 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) .........................................28 Blodgett v. Holden, 275 U.S. 142 (1927) ...........................................................13 Bowen v. Gilliard, 483 U.S. 587 (1987) ..............................................................48 Califano v. Jobst, 434 U.S. 47 (1977) ................................................................24 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...................passim City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ........................passim City of Dallas v. Stanglin, 490 U.S. 19 (1989) ...................................................31 Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) ....................................28 Conaway v. Deane, 932 A.2d 571 (Md. 2007)....................................................passim Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)........................................................27, 28 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ..................................4, 21 DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984) ...............................21
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Dragovich v. U.S. Dep’t of Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011) ...................................................................................................28 Druker v. Comm’r, 697 F.2d 46 (2d Cir. 1982) ..................................................24 Edelman v. Jordan, 415 U.S. 651 (1974) ...........................................................18 FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993).........................................31, 32 Frontiero v. Richardson, 411 U.S. 677 (1973)...................................................26 Fullilove v. Klutznick, 448 U.S. 448 (1980)........................................................14 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ...................20 Heller v. Doe, 509 U.S. 312 (1993) .....................................................................31 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)................................................passim Hicks v. Miranda, 422 U.S. 332 (1975)...............................................................16 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .....................................................................................................27 Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005)...........................................11 In re Cooper, 592 N.Y.S.2d 797 (N.Y. App. Div. 1993) ......................................17, 21 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).......................................passim In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ................................................29 In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) ......................passim Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604 (7th Cir. 2001) ...........................47, 54 Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) .................................................21 Lawrence v. Texas, 539 U.S. 558 (2003) ...........................................................27, 37 Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301 (11th Cir. 2009) ...................................................................................................31 Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ...................................................................................................passim Loving v. Virginia, 388 U.S. 1 (1967) .................................................................25, 29 Lyng v. Castillo, 477 U.S. 635 (1986).................................................................23, 24
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Mandel v. Bradley, 432 U.S. 173 (1977).............................................................16 Marsh v. Chambers, 463 U.S. 783 (1983) ..........................................................36 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) .............................................26 Mathews v. De Castro, 429 U.S. 181 (1976) ......................................................32 Mathews v. Diaz, 426 U.S. 67 (1976)..................................................................32 McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976)............................................16, 17 McConnell v. United States, 188 Fed. App’x 540 (8th Cir. 2006) ....................17 Miller v. Albright, 523 U.S. 420 (1998) ...............................................................46 Moore v. City of E. Cleveland, 431 U.S. 494 (1977) ..........................................19 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)....................................17, 52 Murphy v. Ramsey, 114 U.S. 15 (1885) .............................................................7, 33 Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009)............13 Palko v. Connecticut, 302 U.S. 319 (1937)........................................................19 Regan v. Taxation With Representation, 461 U.S. 540 (1983).........................37 Regan v. Time, Inc., 468 U.S. 641 (1984)...........................................................13 Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ....18 Romer v. Evans, 517 U.S. 620 (1996) ................................................................27 Rostker v. Goldberg, 453 U.S. 57 (1981)...........................................................13, 14 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).......................26 Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) ...........................................22 Shields v. Madigan, 783 N.Y.S.2d 270 (N.Y. Sup. Ct. 2004).............................29 Shweiker v. Wilson, 450 U.S. 221 (1981)...........................................................passim Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) ......................................21 Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535 (1942) .......................23 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .....................passim
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Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006)....................................2, 24 Standhardt v. Superior Ct. of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003)............22, 52 Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. Sup. Ct. 1996) ..............................21 Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) .................................11 Tenet v. Doe, 544 U.S. 1 (2005)..........................................................................18 Turner v. Safley, 482 U.S. 78 (1987) ..................................................................23, 25 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) .................................................13, 32 United States v. Five Gambling Devices, 346 U.S. 441 (1953) ........................14 United States v. Virginia, 518 U.S. 515 (1996) ..................................................51 Vacco v. Quill, 521 U.S. 793 (1997)....................................................................18 Vance v. Bradley, 440 U.S. 93 (1979) ................................................................31 Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985)................14 Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979) .............................................................................................18 Washington v. Glucksberg, 521 U.S. 702 (1997) ..............................................19, 23 White v. White, 731 F.2d 1440 (9th Cir. 1984)...................................................16 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)......................................passim Zablocki v. Redhail, 434 U.S. 374 (1978)...........................................................passim
Constitutional Provisions and Statutes 1 U.S.C. § 7..........................................................................................................1, 3 20 U.S.C. § 1087e................................................................................................24 20 U.S.C. § 1087nn .............................................................................................24 20 U.S.C. § 1087oo .............................................................................................24 28 U.S.C. § 1257 (repealed 1988).......................................................................15, 16 28 U.S.C. § 1738c................................................................................................42
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31 U.S.C. § 1353..................................................................................................24 38 U.S.C. § 101 (1975) ........................................................................................4 42 U.S.C. § 1396a................................................................................................24 750 Ill. Comp. Stat. Ann. § 5/216 (West 2011)...................................................41 “Don’t Ask, Don’t Tell” Act, 10 U.S.C. § 654 ....................................................28 Don’t Ask Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010)..........................................................................................................53 Fla. Const. art I, § 27 (West, Westlaw current through Nov. 4, 2008 General Election) .............................................................................................................41 Mass. Gen. Laws Ann. ch. 207 § 10 (West 2011)..............................................40 Okla. Const. art. II, § 35 (West, Westlaw current with amendments through Nov. 1, 2010) ......................................................................................................41 Revenue Act of 1921, § 223, 42 Stat. 227..........................................................4 U.S. Const. art. II, § 3..........................................................................................13
Legislative Documents 142 Cong. Rec. ................................................................................................... passim 150 Cong. Rec. ................................................................................................... passim 152 Cong. Rec. ...................................................................................................passim 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) .......passim Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996)...........................................................................10 H.R. 3396, 104th Cong. (2d Sess. 1996)............................................................7 H.R. Rep. No. 104-664 (1996) .............................................................................passim Judicial Activism v. Democracy: Nat’l Implications of the Mass. Goodrich Decision & Judicial Invalidation of Traditional Marriage Laws, Hrg. Before S. Subcomm. on the Constitution, 108th Cong. (Mar. 3, 2004).......................43
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Other Authorities
32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996) .........................................5 Barbara Dafoe Whitehead, Dan Quayle Was Right, The Atlantic, Apr. 1993 .....................................................................................................................48 Black’s Law Dictionary (1st ed. 1891)...............................................................34 Council on Families in America, Marriage in America: A Report to the Nation (1995) ............................................................................7 David Popenoe, Life without Father: Compelling New Evidence That Fatherhood & Marriage are Indispensable for the Good of Children & Society (1996) .....................................................................................................48, 50 Douglas Holtz-Eakin, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004)........................................38 Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) ..................16 Final Rule, Family Medical Leave Act, 60 Fed. Reg. 2180 (1995) ...................4 George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999) ....................................................................................................48 H. Biller, Paternal Deprivation (1974)................................................................48 James Q. Wilson, The Marriage Problem (2002) .............................................50 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Charles T. Canady (May 29, 1996), reprinted in House Rep. at 33 .................................................11 Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. Hyde (May 14, 1996), reprinted in House Rep. at 22-23, ..........................................11 Letter to Hon. Orrin G. Hatch (July 9, 1996), reprinted in Senate Hrg. at 2 ...11 Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially (2000) ................................................................................................................... 47-48 Lynn D. Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771 (2001)..........................................................................................52
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Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773 (2002) ...........................................................52 Marriage—Whether Out-of-State Same-Sex Marriage That Is Valid in the State of Celebration May Be Recognized in Maryland, 95 Md. Op. Att’y Gen. 3, 2010 WL 886002 (Feb. 23, 2010) ...........................................................41 Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Soc’y 27 (2004) ..50 Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32247 (June 2, 2010) ..............53 Presidential Memorandum, Federal Benefits and Non-Discrimination, 74 Fed. Reg. 29393 (June 17, 2009) .......................................................................53 Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, Op. No. 3-2007, N.J. Op. Att’y Gen., 2007 WL 749807 (Feb. 16, 2007) ............41 Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004) ..............................................................................................45 U.S. Gen. Accounting Office, Defense of Marriage Act, GAO-04-353R (Jan. 23, 2004).....................................................................................................5 Webster’s Third New Int’l Dictionary (1976).....................................................34 Whether the Defense of Marriage Act Precludes the Non-Biological Child of a Member of a Vermont Civil Union from Qualifying for Child’s Insurance Benefits Under the Social Security Act, 2007 WL 5254330 (2007) ................................................................................................................... 24
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INTRODUCTION This action involves a constitutional challenge to Section 3 of the Defense of Marriage Act (“DOMA”), Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7. Plaintiffs’ action should be dismissed with prejudice. DOMA, which as an act of Congress is entitled to a strong presumption of constitutionality, is subject to rational basis review. As explained in the opposition simultaneously filed by the Bipartisan Legal Advisory Group of the United States House of Representatives (the “House”) to Plaintiffs’ motion for summary judgment, DOMA is not subject to heightened scrutiny because it neither implicates a fundamental right nor involves the classification of a suspect class. DOMA easily passes the rational basis test and does not violate the Equal Protection component of the Fifth Amendment. In enacting DOMA, Congress rationally could have been, and in fact was, concerned with employing proper caution in the face of a proposed redefinition of the centuries-old definition of marriage. Congress’ interest in protecting the public fisc also provided a rational basis for DOMA, as did Congress’ interest in maintaining consistency and uniformity with regard to eligibility for federal benefits. Congress’ judgment also was supported by the rational bases that underlay the traditional definition in the first instance. Congress rationally could have been, and in fact was, concerned about creating a social understanding of bearing, begetting, and rearing children that was separated from marriage. Likewise, Congress rationally could have been, and in fact was, interested in recognizing an institution designed to ensure that children have parents of both

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sexes. Accordingly, Congress’ decision to employ the traditional definition of marriage for purposes of allocating federal benefits and burdens was eminently rational. A conclusion to the contrary would mean that the 427 members of Congress who voted for DOMA (including then-Senator Joseph Biden), and President Clinton who signed DOMA into law, were not just misguided in Plaintiffs’ eyes, but were patently irrational in reaffirming the traditional definition of marriage.
Moreover, any effort to redefine the institution of marriage as something other than the union of one man and one woman is a matter best left to the democratic process, where the issue has been actively debated and where proponents of same-sex marriage have made remarkable strides. As the Ninth Circuit has noted, “it is difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative.” Smelt v. Cnty. of Orange, 447 F.3d 673, 681 (9th Cir. 2006). And there is an alternative: Determining the federal rights of same-sex couples “remains a fit topic for [Congress] rather than the courts.” Id. at 684 n.34 (citing several bills pending in the 109th Congress). In short, the question at issue in this case is not a question that is “unlikely to be soon [addressed] by legislative means.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). This is a quintessential legislative and democratic question that should be decided by the people, not by the courts. Accordingly, this Court should grant the House’s motion to dismiss.
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BACKGROUND Plaintiffs
Plaintiffs are various residents of Vermont, Connecticut, and New Hampshire. Am. Compl. (Jan. 14, 2011) (ECF No. 33) ¶ 2. Each of the plaintiffs is (or was, in the case of Gerald V. Passaro II whose partner died) considered legally married to a person of the same-sex by state law. Id. Each plaintiff or plaintiff’s partner has attempted at one time or another to be treated as married for the sake of federal health care benefits, the Family Medical Leave Act (FMLA), federal taxes, Social Security, or state—or company—run pension or retirement benefits that are subject to federal law. Id. ¶¶ 4, 6-10. Pursuant to DOMA, the relevant agencies or administrators have treated the plaintiffs as individuals, rather than married couples. Id. ¶¶ 5-10. Plaintiffs brought this action seeking declaratory and injunctive relief and alleging that DOMA, as applied to them, violates the equal protection component of the Fifth Amendment’s Due Process Clause and asking this Court to declare DOMA unconstitutional. Id. ¶ 11.
The Defense of Marriage Act of 1996 Section 3 of DOMA defines “marriage” for purposes of federal law as the legal union of a man and a woman:
In determining the meaning of an y Act of Congress, or of a ny ruling, regulation, or inte rpretation of the variou s administrative bureaus and agencies of the United States, the word “marriage” means onl y a legal union between one man and one woman as husband and wife, and the w ord “spouse” refers only to a per son of the opposite sex w ho is a husband or a wife. 1 U.S.C. § 7. Congress did not, of course, invent the definition of “marriage” and
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the related term “spouse” in 1996. Rather, in DOMA, Congress merely codified and confirmed what Congress always has meant in using those words. Even before DOMA, whenever Congress used terms connoting a marital relationship, it meant a traditional male-female couple. See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return); 38 U.S.C. § 101(3) (1975) (“The term ‘surviving spouse’ means . . . a person of the opposite sex who was the spouse of a veteran . . . .”); Final Rule, Family Medical Leave Act, 60 Fed. Reg. 2180, 2190-91 (1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would include “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), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting 1901 District of Columbia marriage statute, intended “that ‘marriage’ is limited to opposite-sex couples”); 150 Cong. Rec. S7966 (daily ed. July 13, 2004) (Sen. Inhofe) (“In the late 19th century, Congress would not admit Utah into the Union unless it abolished polygamy and committed to the common national definition of marriage as one man and one woman.”); see also 152 Cong. Rec. S5473 (daily ed. June 6, 2006) (Sen. Talent) (“Marriage is our oldest social institution. It is older than our system of property. It is older than our system of justice. It certainly predates our political institutions and our Constitution.”).
Congress designed DOMA to apply comprehensively to all manner of
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federal programs. According to the GAO, as of 2004, there were 1,138 provisions in the United States Code “in which marital status is a factor in determining or receiving benefits, rights, and privileges.” U.S. Gen. Accounting Office, Defense of Marriage Act, GAO-04-353R at 1 (Jan. 23, 2004). DOMA seeks to reaffirm the definition of marriage already reflected in those statutes, namely, the traditional definition of marriage as between one man and one woman.
DOMA’s Legislative Branch History The 104th Congress enacted DOMA in 1996 with overwhelming, bipartisan support. DOMA passed by a vote of 342-67 in the House and 85-14 in the Senate. See 142 Cong. Rec. 17093-94 (1996) (House vote); 142 Cong. Rec. 22467 (1996) (Senate vote). In all, 427 Members of Congress voted for DOMA. President Clinton signed DOMA into law on September 21, 1996. See 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996). DOMA was enacted in response to the Hawaii Supreme Court’s opinion in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), finding that the denial of a marriage license to a same-sex couple was subject to strict scrutiny under the Hawaii Constitution. See H.R. Rep. No. 104-664 at 4-5 (1996) (“House Rep.”). The Hawaii courts “appear[ed] to be on the verge of requiring that State to issue marriage licenses to same-sex couples.” Id. at 2. Congress was concerned that the decision by the Hawaii Supreme Court could interfere with the ability of other states and the federal government to define marriage along traditional lines. Section 2 of DOMA addressed the concern about the Hawaii decision being given preclusive effect in other states. And with Section 3, Congress ensured that, no
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matter what Hawaii or any other state might do to redefine marriage under state law, the definition of marriage for purposes of federal law would remain, as it always has been, the lawful union of one man and one woman.
The legislative history confirms that, even in statutes enacted before DOMA, Congress never intended the word “marriage” to include same-sex couples. See id. at 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); id. at 29 (“Section 3 merely restates the current understanding of what those terms mean for purposes of federal law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”); id. at 17072 (Rep. Sensenbrenner). In enacting DOMA, Congress was concerned with more than semantics: It intended to ensure that the meaning of federal statutes already on the books, and the legislative judgments of earlier Congresses, would be respected and that the array of federal benefits tied to marriage therefore would be reserved for traditional marital relationships. See Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 (1996) (hereinafter, “House Hrg.”) (statement of Rep. Sensenbrenner) (“When all of these benefits were passed by Congress—and some of them decades ago—it was assumed that the benefits would be to the survivors or to the spouses of traditional heterosexual marriages.”).
During its deliberations over DOMA, Congress repeatedly emphasized “[t]he enormous importance of marriage for civilized society.” House Rep. at 13
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(quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)); see also House Rep. at 12 (quoting H.R. 3396, 104th Cong. (2d Sess. 1996)). The House Report quoted approvingly from Murphy v. Ramsey, in which the Supreme Court referred to “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization.” House Rep. at 12 (quoting Murphy, 114 U.S. 15, 45 (1885)); see also 142 Cong. Rec. 16799 (1996) (Rep. Largent) (“[T]here is absolutely nothing that we do that is more important than protecting our families and protecting the institution of marriage.”); id. at 16970 (Rep. Hutchinson) (marriage “has been the foundation of every human society”); id. at 22442 (Sen. Gramm) (“[T]he traditional family has stood for 5,000 years. There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society—it is the oldest institution that exists.”); id. at 22454 (Sen. Burns) (“[M]arriage between one man and one woman is still the single most important social institution.”).
In enacting DOMA, Congress also recognized that, historically in American law, the institution of marriage consisted of the union of one man and one woman. See House Rep. at 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry.”); House Hrg. at 1 (statement of Rep. Canady) (“Simply stated, in the history of our country, marriage has never meant anything else.”); 142 Cong. Rec. 16796 (1996) (Rep. McInnis) (“If we look at any definition, whether it is Black’s Law Dictionary, whether it is Webster’s Dictionary, a marriage is defined as [a] union between a man and a woman, and that should
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be upheld . . . and this Congress should respect that.”). This historical definition was by no means a singling out of homosexual relationships: Rather, it identified one type of relationship (traditional marriage) as especially important, and excluded every other kind of relationship from the definition of “marriage.” And Congress concluded that such an important institution should not be radically redefined at the federal level to include same-sex relationships. Senator Dorgan expressed the views of many Members of Congress when he stated: “For thousands of years, marriage has been an institution that represents a union between a man and a woman, and I do not support changing the definition of marriage or altering its meaning.” 142 Cong. Rec. S10552 (Sept. 13, 1996); see id. at 16802 (Rep. Stearns) (“If we change how marriage is defined, we change the entire meaning of the family.”); id. at 22451 (Sen. Coats) (DOMA “merely restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world”); id. at 22452 (Sen. Mikulski) (DOMA “is about reaffirming the basic American tenet of marriage”).
In adopting a single definition of marriage to govern all federal laws, Congress decided that eligibility for federal benefits should not vary depending on how a state might choose to define marriage. As Senator Ashcroft stated, a federal definition “is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently . . . , people in different States would have different eligibility to receive Federal benefits, which would be inappropriate.” Id. at 22459. He added that benefits “should be uniform for people no matter where they come from in this
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country. People in one State should not have a higher claim on Federal benefits than people in another State.” Id.
In adhering to the historic definition of marriage, Congress explained that marriage is afforded a special legal status because only a man and a woman can beget a child together, and because historical experience has shown that a family consisting of a married father and mother is an effective social structure for raising children. For example, the House Report states that the reason “society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.” House Rep. at 12, 13. Many Members of Congress supported DOMA on that basis. See 142 Cong. Rec. 22446 (1996) (Sen. Byrd) (“The purpose of this kind of union between human beings of opposite gender is primarily for the establishment of a home atmosphere in which a man and a woman pledge themselves exclusively to one another and who bring into being children for the fulfillment of their love for one another and for the greater good of the human community at large.”); 142 Cong. Rec. S10002 (daily ed. Sept. 6, 1996) (Sen. Lieberman) (“I intend to support the Defense of Marriage Act because I think that affirms another basic American mainstream value, . . . marriage as an institution between a man and a woman, the best institution to raise children in our society.”); House Hrg. at 1 (Rep. Canady) (“[Marriage] is inherently and necessarily reserved for unions between one man and one woman. This is because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children.”); 142 Cong. Rec. 17081
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(1996) (Rep. Weldon) (“[M]arriage of a man and woman is the foundation of the family. The marriage relationship provides children with the best environment in which to grow and learn.”).
Congress received and considered advice on DOMA’s constitutionality and determined that DOMA is constitutional. See, e.g., House Rep. at 32 (DOMA “plainly constitutional”); id. at 33-34 (letters to House from DOJ advising that DOMA is constitutional); House Hrg. at 86-117 (testimony of Professor Hadley Arkes); Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 1, 2 (1996) (hereinafter, “Senate Hrg.”) (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 2 (DOJ letter to Senate advising that DOMA is constitutional); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell); see also 150 Cong. Rec. S7879 (daily ed. July 9, 2004) (Sen. Hatch) (“There is an obvious[ ] rational basis for legislation that protects traditional marriage.”); 150 Cong Rec. H7896 (daily ed. Sept. 30, 2004) (Letter from former Attorney Gen. Edwin Meese to Rep. Musgrave) (“As marriage is a fundamental social institution, it is not only reasonable but also obligatory that it be preferred and defended in the law.”); 150 Cong. Rec. S8008 (daily ed. July 13, 2004) (Sen. Sessions) (“No one disputes that a two-parent traditional family is a healthy, positive force for our society. That is why it is perfectly legitimate for any government to provide laws that further [marriage].”).
DOMA’s Executive Branch History During the Clinton Administration, the Justice Department three times
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advised Congress that DOMA was constitutional, stating, for example, that it “continues to believe that [DOMA] would be sustained as constitutional if challenged in court, and that it does not raise any legal issues that necessitate further comment by the Department. . . . [T]he Supreme Court’s ruling in Romer v. Evans does not affect the Department’s analysis.” Letter from Andrew Fois, Ass’t Att’y Gen., to Hon. Charles T. Canady (May 29, 1996), reprinted in House Rep. at 33; see also Letters from Andrew Fois, Ass’t Att’y Gen., to Hon. Henry J. Hyde (May 14, 1996), reprinted in House Rep. at 22-23, and to Hon. Orrin G. Hatch (July 9, 1996), reprinted in Senate Hrg. at 2.
During the Bush Administration, DOJ successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment. See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (upholding Section 3 against due process and equal protection claims); Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) (granting plaintiff’s request for voluntary dismissal after defendants filed their motion to dismiss); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) (upholding Section 3 against due process and equal protection claims); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (same); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (upholding Section 3 against due process and equal protection claims), vacated in relevant part for lack of standing, 477 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006).
During the first two years of the Obama Administration, DOJ continued to defend DOMA, albeit without defending Congress’ stated justifications for the
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law. However, in February of this year, the Executive Branch abruptly reversed course. The Attorney General notified Congress that DOJ had decided “to forgo the defense” of DOMA. Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives, at 5 (Feb. 23, 2011) (ECF No. 10-2). Attorney General Holder stated that he and President Obama now are of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id. at 6. At the same time, the letter acknowledged that:
(1) at least ten federal appellate courts have issued binding circuit precedent holding that sexual orientation classifications are properly judged under the highly deferential rational basis test, not “heightened” scrutiny, id. at 3-4 nn.4-6;
(2) in light of “the respect appr opriately due to a coequal branch of government,” DOJ “has a lo ngstanding practice of defending the constitutionality of dul y-enacted statutes if reasonable arguments can be made in their defense,” id. at 5; and
(3) in fact, “a reasonabl e argument for Section 3’s constitutionality may be proffered under that permissive [rational basis] standard,” id. at 6 (emphasis added).
Despite the Obama Administration’s decision to decline to defend DOMA’s constitutionality, the Holder letter states that “the President has instructed Executive agencies to continue to comply with Section 3 of DOMA.” Id. at 5. Thus, Executive Branch officials now are in the seemingly untenable position of enforcing a statute that the head of the Executive Branch views as unconstitutional and that the Executive Branch’s chief law enforcement officer declines to defend when those Executive Branch officials’ actions are challenged
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in court. All of this despite the fact that the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, surely includes the duty to defend as well as enforce the law.
ARGUMENT I. DOMA FULLY COMPLIES WITH THE CONSTITUTIONAL GUARANTEE
OF EQUAL PROTECTION. Section 3 of DOMA does not violate the equal protection component of the Fifth Amendment.1 A. As an Act of Congress, DOMA Is Entitled to a Strong Presumption of
Constitutionality. The Supreme Court has explained that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform.’” Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009) (quoting Blodgett v. Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring)). “‘The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.’” Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 64 (1981)). Furthermore, “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U.S. 641, 652 (1984). For these reasons, the Supreme “Court does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite
1 Section 3 also comports with due process: “[I]f a federal statute is valid under the equal protection component of the Fifth Amendment, it is perforce valid under the Due Process Clause of that Amendment.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174 n.8 (1980).
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gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). “The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act’s constitutionality.” Rostker, 453 U.S. at 64. “This deference to congressional judgment must be afforded even though the claim is that a statute Congress has enacted” violates the Fifth Amendment. Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 319-20 (1985). The Supreme Court “accord[s] great weight to the decisions of Congress even though the legislation . . . raises equal protection concerns.” Fullilove v. Klutznick, 448 U.S. 448, 472 (1980) (quotation marks omitted) (receded from on other grounds, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236 (1995)).
B. Binding Supreme Court Precedent Supports DOMA’s Constitutionality.
No matter how this Court might view DOMA if it were an open question, this Court is bound by Supreme Court precedent squarely holding that defining marriage as between one man and one woman comports with equal protection.
In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court held that two men, Baker and McConnell, had no constitutional right to marry each other. Their application to the clerk of Hennepin County, Minnesota, for a marriage license was declined, based on state law, “on the sole ground that [they] were of the same sex.” Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971) (en banc). The
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Minnesota Supreme Court rejected their constitutional challenge to the state statute defining marriage as “the state of union between persons of the opposite sex.” Id. at 186. The court rejected their arguments “that the right to marry without regard to the sex of the parties is a fundamental right” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Id. It held instead that “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination.” Id. at 187. The court noted that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.” Id. at 186.
The two men took an appeal as of right to the U.S. Supreme Court under former 28 U.S.C. § 1257(2) (repealed 1988). In their Jurisdictional Statement, they included on their list of “Questions Presented” the following: “Whether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.” Jurisdictional Statement for Appellant at 3, Baker v. Nelson, No. 71-1027 (1972), attached as Ex. A hereto. And they expressly argued that the Minnesota statutes violated equal protection. See id. at 11-18. The U.S. Supreme Court summarily affirmed the Minnesota Supreme Court’s decision, deeming the equal protection challenge insubstantial. The Supreme Court unanimously ordered: “The appeal is dismissed for want of a substantial federal question.” Baker, 409 U.S. at 810.
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In Supreme Court practice, such a disposition is a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975); Mandel v. Bradley, 432 U.S. 173, 176 (1977) (Hicks “held that lower courts are bound by summary actions on the merits by this Court”). It means that “the Court found that the decision below was correct and that no substantial question on the merits was raised.” Eugene Gressman et al., Supreme Court Practice 365 (9th ed. 2007); see White v. White, 731 F.2d 1440, 1443 (9th Cir. 1984) (“A summary dismissal by the Supreme Court of an appeal from a state court for want of a substantial federal question operates as a decision on the merits on the challenges presented in the statement of jurisdiction.”). The dismissal in Baker is no mere denial of certiorari. The Court’s certiorari jurisdiction is discretionary, whereas its appellate jurisdiction under 28 U.S.C. § 1257(2) was mandatory. Thus, in Baker, “the Supreme Court had no discretion to refuse to adjudicate the case on its merits.” Wilson, 354 F. Supp. 2d at 1304. The Jurisdictional Statement in Baker expressly argued that Minnesota’s refusal to license same-sex marriages violated equal protection, and “dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.” Mandel, 432 U.S. at 176.
Referring specifically to Baker, the Eighth and Ninth Circuits have explained that “the Supreme Court’s dismissal of the appeal for want of a substantial federal question constitutes an adjudication on the merits which is binding on the lower federal courts.” McConnell v. Nooner, 547 F.2d 54, 56 (8th
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Cir. 1976);2 accord Adams v. Howerton, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982). Other federal courts also have recognized Baker’s effect. Rejecting an equal protection challenge to DOMA, the court in Wilson held that Baker “is binding precedent upon this Court and Plaintiffs’ case against Attorney General Ashcroft must be dismissed.” Wilson, 354 F. Supp. 2d at 1305; see also Adams, 486 F. Supp. at 1124 (“Baker . . . is controlling.”). State courts, too, have recognized that Baker remains binding precedent. See Andersen v. King Cnty., 138 P.3d 963, 999 & n.19 (Wash. 2006) (equal protection claim in Baker “was so frivolous as to merit dismissal without further argument”); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005); In re Cooper, 592 N.Y.S.2d 797, 800 (N.Y. App. Div. 1993).
Baker effectively holds that a state may define marriage as the union of one man and one woman without violating equal protection. Since “[the Supreme] 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, 515 U.S. at 217, it necessarily follows from Baker that Congress rationally may define marriage, for federal law purposes, using that same historic definition of marriage consistent with equal protection. See Wilson, 354 F. Supp. 2d at 1305 (holding that Baker had “dispositive effect” on equal protection challenge to DOMA Section 3).
2 After Hennepin County denied Baker and McConnell a marriage license, they obtained one from the clerk of Blue Earth County, and the two “were ‘married’ by a minister.” McConnell v. Nooner, 547 F.2d at 55. Despite this marriage, the Eighth Circuit in 1976 rejected their claim for federal veteran’s spousal benefits. Id. at 55-56. It also rejected, in 2006, their claim for a federal tax refund. See McConnell v. United States, 188 Fed. App’x 540 (8th Cir. 2006).
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This Court is obligated to follow Baker, even if it believes that later Supreme Court cases have undermined Baker or that a majority of the current Justices might decide Baker differently today. See Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); see also Tenet v. Doe, 544 U.S. 1, 10-11 (2005) (same); Agostini v. Felton, 521 U.S. 203, 237 (1997) (admonishing lower courts not to “conclude our more recent cases have, by implication, overruled an earlier precedent”).3 “The Supreme Court has not explicitly or implicitly overturned its holding in Baker.” Wilson, 354 F. Supp. 2d at 1305. Thus, this Court “is bound to follow the Supreme Court’s decision.” Id.
C. Rational Basis Review, Not Any Form of Heightened Scrutiny, Applies to DOMA.
In judging an equal protection claim, the deferential rational basis test applies where, as here, “a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class.” Vacco v. Quill, 521 U.S. 793, 799
3 When the Supreme Court has considered the weight of its summary affirmances in subsequent Supreme Court cases, it has noted that such affirmances “do not . . . have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits.” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 478 n.20 (1979) (emphasis added) (citing Edelman v. Jordan, 415 U.S. 651, 670-71 (1974) (discussing the stare decisis weight of summary affirmances)). This does not change the well-settled rule that these decisions are binding precedents for lower courts.
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(1997) (quotation marks omitted); see also Wilson, 354 F. Supp. 2d at 1308 (judging equal protection challenge to DOMA under rational basis test); Smelt, 374 F. Supp. 2d at 879-80 (same); In re Kandu, 315 B.R. at 140-41 (same); see also Adams, 673 F.2d at 1042-43 (applying rational basis test to congressional definition of spouse as person of opposite sex).
1. DOMA Does Not Infringe the Fundamental Right to Marriage. a. Same-Sex Marriage Is Not a Fundamental Right.
Fundamental rights are those rights that “are, objectively, ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (citation omitted; quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality), and Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Same-sex marriage simply cannot be described as a fundamental right under the Supreme Court’s definition. And, even if it could, DOMA does not prohibit same-sex marriage; it merely supplies a definition for purposes of federal law.
The right to marry someone of one’s own sex is, of course, not deeply rooted in American law and history—indeed, it has scarcely any roots at all. Although the landscape has changed somewhat in the past fifteen years, when Congress enacted DOMA in 1996, not one of the fifty states permitted same-sex marriage, and no American court had discovered a state or federal constitutional right to same-sex marriage. See House Rep. at 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry. No State now or at any time in American history has permitted same-sex couples to enter into the
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institution of marriage.”). Only the Hawaii Supreme Court, by a bare 3-2 vote, had suggested that such a right might exist under its state constitution. See Baehr, 852 P.2d at 65; but see id. at 74 (Heen, J., dissenting) (“This court should not manufacture a civil right which is unsupported by any precedent.”).
Since DOMA’s enactment, same-sex marriage has gained legal recognition in some jurisdictions, often as the result of judicial interpretations of state constitutional provisions and increasingly through the democratic process. But those recent developments do not remotely amount to a deeply-rooted tradition. In America, same-sex marriage was first legally recognized in 2004 in Massachusetts, following the decision in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Same-sex marriage also currently is permitted in Vermont, New Hampshire, Connecticut, Iowa, the District of Columbia, and most recently in New York. And, for a time, California issued same-sex marriage licenses, after its Supreme Court held that such couples had a right under the state’s constitution to marry. (That ruling was superseded by a state constitutional amendment, which now is being challenged on equal protection grounds). Forty-one states have constitutional amendments or statutes defining marriage as the union of one man and one woman. See List of Statutes, attached as Ex. B hereto. As far as same-sex marriage has come in a short span of time, it cannot be said that an institution that first gained legal recognition in 2004 is, only seven years later, “deeply rooted.”
Before DOMA, every court to address the issue had held that there is no statutory, common law, or constitutional right to same-sex marriage. See Baker,
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191 N.W.2d at 186-87, appeal dismissed, 409 U.S. 810 (1972); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500 (N.Y. Sup. Ct. 1971) (“The law makes no provision for a ‘marriage’ between persons of the same sex. Marriage is and always has been a contract between a man and a woman.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (“We find no constitutional sanction or protection of the right of marriage between persons of the same sex.”); Singer v. Hara, 522 P.2d 1187, 1192 (Wash. Ct. App. 1974) (rejecting federal equal protection claim) (“[T]he courts known by us to have considered the question have all concluded that same-sex relationships are outside of the proper definition of marriage.”); DeSanto v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984) (holding that two persons of the same sex cannot contract a common law marriage); In re Cooper, 592 N.Y.S.2d 797 (following Baker v. Nelson); Dean, 653 A.2d at 361-62 (Terry, J., concurring) (rejecting Fifth Amendment equal protection challenge to District of Columbia marriage statute enacted by Congress); id. at 362-64 (Steadman, J., concurring) (same); Storrs v. Holcomb, 645 N.Y.S.2d 286, 287 (N.Y. Sup. Ct. 1996) (rejecting argument that “denial of a marriage license to a same sex couple destroys a fundamental right”).
Thus, every federal and state court to consider the question has held that same-sex marriage is not a fundamental federal right deeply rooted in American law and history. See Smelt, 374 F. Supp. 2d at 879 (“[T]he fundamental due process right to marry does not include a fundamental right to same-sex marriage . . . .”); Wilson, 354 F. Supp. 2d at 1307 (“[T]he right to marry a person of the same sex is not a fundamental right under the Constitution.”); In re Kandu, 315 B.R. at
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140 (Supreme Court has not “conferred the fundamental right to marry on anything other than a traditional, opposite-sex relationship”); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 675 (Tex. App. 2010) (“Plainly, [same-sex marriage] is not [deeply rooted]. Until 2003, no state recognized same-sex marriages.”); Conaway v. Deane, 932 A.2d 571, 624 (Md. 2007) (same-sex marriage not “so deeply embedded in the history, tradition, and culture of this State and the Nation that it should be deemed fundamental”); Standhardt v. Superior Ct. of Ariz., 77 P.3d 451, 460 (Ariz. Ct. App. 2003) (“The history of the law’s treatment of marriage as an institution involving one man and one woman, together with recent, explicit reaffirmations of that view, lead invariably to the conclusion that the right to enter a same-sex marriage is not a fundamental liberty interest protected by due process.”); see also Shahar v. Bowers, 114 F.3d 1097, 1099 & n.2 (11th Cir. 1997) (en banc) (“Given the culture and traditions of the Nation, considerable doubt exists that Plaintiff has a constitutionally protected federal right to be ‘married’ to another woman . . . .”; “[N]o federal appellate court or state supreme court has recognized the federal rights of same-sex marriage claimed by Plaintiff . . . .”).
As New York’s highest court aptly observed: “Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). The notion that same-sex marriage is a fundamental right, as the Supreme Court of Washington observed, would be “an astonishing conclusion, given the lack of any authority
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supporting it; no appellate court applying a federal constitutional analysis has reached this result.” Andersen, 138 P.3d at 979.
By contrast, in cases involving traditional, opposite-sex marriage, the Supreme Court indeed has recognized a fundamental right to marry. See Turner v. Safley, 482 U.S. 78, 95 (1987); Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 541 (1942). But it never has suggested, let alone held, that samesex marriage comes within the scope of this right. Indeed, it has indicated to the contrary. The Court repeatedly has warned of the need for “a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721. Here, careful consideration reveals that the Court has deemed marriage to be fundamental precisely because of its connection to procreation, something that same-sex spouses cannot accomplish, un-aided, with each other. See, e.g., Zablocki, 434 U.S. at 386 (referring to “decision to marry and raise the child in a traditional family setting”); Skinner, 316 U.S. at 541 (“Marriage and procreation are fundamental to the very existence and survival of the [human] race.”).
b. DOMA Implicates Federal Benefits, Not the Right of Same-Sex Couples to Marry.
Regardless of whether same-sex marriage is a fundamental right, DOMA does not “‘directly and substantially’ interfere” with the ability of same-sex couples to marry, Lyng v. Castillo, 477 U.S. 635, 638 (1986); In re Kandu, 315 B.R. at 141 & n.6, because it does not bar same-sex marriages. Congress has defined marriage for purposes of federal law, but that definition implicates eligibility for federal benefits and burdens, it “does not . . . prevent any” same sex couple from
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marrying under state law. Lyng, 477 U.S. at 638. DOMA does not operate “by banning, or criminally prosecuting nonconforming marriages.” Califano v. Jobst, 434 U.S. 47, 54 n.11 (1977).
DOMA only defines marriage for purposes of benefits—and burdens4— created by other federal laws. As Senator Nickles, the principal sponsor of DOMA in the Senate, stated: “These definitions apply only to Federal law. We are not overriding any State law. We are not banning gay marriages.” Senate Hrg. at 5. Congress “did not penalize” same sex couples; it “decided not to offer them a special inducement.” Alexander v. Fioto, 430 U.S. 634, 640 (1977). Furthermore, DOMA does not prevent federal agencies from extending benefits to same-sex couples, or their dependents, on an otherwise lawful basis apart from marital status. See Whether the Defense of Marriage Act Precludes the Non-Biological Child of a Member of a Vermont Civil Union from Qualifying for Child’s Insurance Benefits Under the Social Security Act, 2007 WL 5254330, at *1 (Opinion of the Office of Legal Counsel, Oct. 16, 2007) (opining that DOMA permits such benefits); Smelt, 447 F.3d at 683 (DOMA “does not purport to preclude Congress or anyone else in the federal system from extending benefits to those who are not
4 For only a few examples, covering only federal statutes (not agency regulations), see, for example: Druker v. Comm’r, 697 F.2d 46 (2d Cir. 1982) (rejecting challenge to “marriage penalty” in federal tax code); 42 U.S.C. § 1396a(a)(17)(D) (non-spouses’ income cannot be counted against an individual in determining Medicaid eligibility); 20 U.S.C. § 1087nn(b)(1) (spousal income counted in determining amount of student loan eligibility); id. § 1087oo(f)(3) (stepparent’s income counted in determining amount of student loan eligibility); id. § 1087e(e) (spousal income counted in determining income-contingent repayment amounts on student loans); 31 U.S.C. § 1353(a) (mandating regulations under which travel by Executive-Branch spouses may be reimbursed by nonfederal sources).
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included within [DOMA’s] definition”). Nor does DOMA alter marital benefits under state law. See House Rep. at 31 (“Whether and to what extent benefits available to married couples available under state law will be available to homosexual couples is purely a matter of state law, and Section 3 in no way affects that question.”).
Both of these features dramatically distinguish DOMA from other laws that the Supreme Court has found to infringe the right to marry. In these cases the states had not merely declined to offer benefits to some married couples, but instead affirmatively (1) had prohibited their marriages and (in two of the three cases) (2) had attached severe penalties to the celebration of such marriages. Loving, 388 U.S. at 4 (Virginia voided interracial marriages and punished them with one to five years’ imprisonment); Zablocki, 434 U.S at 375 & n.1, 387 (Wisconsin prohibited marriage without court order for certain persons, on pain of criminal sanctions); Turner, 482 U.S. at 82 (prohibition on marriage by prisoners except with permission of superintendent for “compelling reasons”). DOMA does neither.
As a result, even assuming that the fundamental right to marriage included the ability to enter a same-sex marriage (which, as discussed above, it does not), in order to conclude that DOMA restricts the fundamental right to marriage, a court would have to expand equal protection from the current rule that prohibitions on marriage are subject to strict scrutiny to a rule that offering different or lesser benefits to any category of potential marriages is subject to strict scrutiny. The Supreme Court expressly has held that “reasonable
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regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Zablocki, 434 U.S. at 386. While same-sex couples may object to the government’s refusal to treat their decisions to enter state-law marriages in the same manner as those of oppositesex couples, Section 3 of DOMA does absolutely nothing to “interfere with” those decisions in any way.
2. DOMA Does Not Employ a Suspect or Quasi-Suspect Classification.
The recognized suspect classes are “race, alienage, [and] national origin.” City of Cleburne, 473 U.S. at 440. Classifications based on sex or illegitimacy are quasi-suspect. Id. at 440-41. The Supreme Court has rejected many other proposed suspect and quasi-suspect classes, such as mental retardation, id. at 442-47, age, Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). It would be inappropriate for this Court to add to the list of suspect and quasi-suspect classes, particularly in light of the Supreme Court’s binding decision in Baker. The Supreme Court has not expanded the list in nearly forty years, see Frontiero v. Richardson, 411 U.S. 677 (1973) (sex), and since that time no federal district court or court of appeals has added to the list of suspect and quasi-suspect classes without being reversed by a higher court.
DOMA’s definitions of “marriage” and “spouse” do not implicate any suspect or quasi-suspect class. The definitions do not turn on homosexuality as such, and in situations in which federal burdens are at issue, DOMA actually benefits same-sex couples. See supra p. 24 n.4. To be sure, the overwhelming
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majority of same-sex marriages will be between two individuals who share the same sexual orientation. But sexual orientation never has been viewed as a suspect or quasi-suspect classification by federal courts.
First, “the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes.” Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006). On the contrary, the Supreme Court has applied the rational basis test to equal protection challenges of classifications based on sexual orientation. See Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003).
Second, every circuit court that has addressed the question has concluded that homosexuals are not a suspect or quasi-suspect class. No fewer than eleven federal circuits have held that homosexuals are not a suspect class. See Cook v. Gates, 528 F.3d 42, 61-62 (1st Cir. 2008) (“Absent additional guidance from the Supreme Court, we join our sister circuits in declining to read Romer as recognizing homosexuals as a suspect class for equal protection purposes.”), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009); Citizens for Equal Prot., 455 F.3d at 866; Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases from the Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, District of Columbia, and Federal Circuits) (“[A]ll of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.”), cert. denied, 543 U.S. 1081 (2005); see, e.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (“Our review compels us to agree with the other circuits that have ruled on
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this issue and to hold that homosexuals do not constitute a suspect or quasisuspect class.”); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (“[W]e must depart from [the district court’s] analysis, in which [it] found that homosexuals constitute a suspect class, justifying heightened scrutiny of the regulation . . . .”).
In Cook, for instance, the First Circuit considered the constitutionality of the federal “Don’t Ask, Don’t Tell” Act, 10 U.S.C. § 654. The plaintiffs in Cook “contend[ed] that the district court erred by applying rational basis review” to the Act and that “the Supreme Court’s decisions in Romer and Lawrence mandate[d] a more demanding standard.” Cook, 528 F.3d at 61 (citation omitted). The First Circuit expressly rejected those contentions, holding that “neither Romer nor Lawrence mandate heightened scrutiny of the Act because of its classification of homosexuals.” Id. The court further held that “the district court was correct to analyze the plaintiffs’ equal protection claim under the rational basis standard.” Id.
Nor does DOMA discriminate based on sex. No court ever has concluded to the contrary, and the House is unaware of any traditional-marriage provision, State or federal, that ever has been held to classify based on sex within the meaning of the federal Constitution. Instead, every court to have considered the question as a matter of federal law has concluded that DOMA classifies, if at all, on the basis of sexual orientation, not of sex. Dragovich v. U.S. Dep’t of Treasury, 764 F. Supp. 2d 1178, 1182 (N.D. Cal. 2011); Collins v. Brewer, 727 F.
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Supp. 2d 797 (D. Ariz. 2010); Wilson v. Ake, 354 F. Supp. 2d 1298; Smelt, 374 F.
Supp. 2d 861; In re Kandu, 315 B.R. 123; Conaway, 932 A.2d 571; see also In re
Marriage Cases, 183 P.3d 384 (Cal. 2008); Andersen, 138 P.3d 963; Shields v.
Madigan, 783 N.Y.S.2d 270 (N.Y. Sup. Ct. 2004); Baker v. State, 744 A.2d 864, 890 (Vt. 1999).5
This common-sense conclusion is not inconsistent with Loving v. Virginia.
In Loving, recognizing that “the Equal Protection Clause requires the
consideration of whether the classifications drawn by any statute constitute an
arbitrary and invidious discrimination,” the Court struck down a Virginia statute
prohibiting interracial marriage. 388 U.S. at 10. Anti-miscegenation statutes such
as the one struck down in Loving were, of course, enacted precisely to
disadvantage racial minorities and “maintain White Supremacy.” Id. at 11. While
they necessarily prohibited some marriages to members of any race, in doing so
they imposed—and were obviously intended to impose—vastly greater social and
numerical restrictions on the choice of potential spouses by members of the
5 State courts have reached the same conclusion with respect to state laws defining marriage. See, e.g., Conaway, 932 A.2d at 598 (Maryland’s “marriage statute does not discriminate on the basis of sex”); Andersen, 138 P.3d at 969 (Washington’s “DOMA treats both sexes the same”); In re Marriage Cases, 103 P.3d at 401. Although dealing with the California constitution, the California Supreme Court actually rejected the contention “that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender.” Id. Only Baehr v. Lewin is to the contrary, and the court there expressly noted that it was interpreting the Hawaii constitution, that “[t]he equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another,” 852 P.2d at 59, and that Hawaii’s equal protection clause “is more elaborate” than the federal one, id. at 60. In any event, Baehr has since been rejected by an amendment to Hawaii’s constitution.
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disfavored minority group. By contrast, there is not the slightest indication in either history or reason that DOMA was intended to effect or perpetuate any inequality between the sexes. Nor does it do so: The numbers of men and women in the population are very nearly equal, and in stark contrast to antimiscegenation statutes, the very nature of traditional-marriage statutes precludes any possibility that they could be intended to prevent members of a supposedly inferior sex from marrying outside their sex. Instead, and quite obviously, DOMA was intended to distinguish between same-sex and opposite-sex relationships. It therefore is not sex discrimination.
In sum, a governmental definition of marriage as between a man and a woman does not classify based upon a suspect or quasi-suspect class, as four federal courts already specifically have held. See Citizens for Equal Prot., 455 F.3d at 866-67; Wilson, 354 F. Supp. 2d at 1307-08; In re Kandu, 315 B.R. at 144 (holding that Lawrence did “not eviscerate” the Ninth Circuit’s holding in High Tech Gays that homosexuals did not constitute suspect or quasi-suspect class); Smelt, 374 F. Supp. 2d at 874-75, vacated for lack of standing, 447 F.3d 673, cert. denied, 549 U.S. 959 (2006); see also Mem. in Supp. of House’s Opp’n to Pls.’ Mot. for Summ. J. (Aug. 15, 2011) at 6-28 (discussing why homosexuality fails to meet criteria for suspect or quasi-suspect class).6
6 While the House does not concede in the least that any form of heightened scrutiny is applicable to DOMA, even under a more searching standard DOMA’s classification is constitutional.
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D. DOMA Easily Satisfies Rational Basis Review. Rational basis review “is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989). Under such review, a classification in a statute receives “a strong presumption of validity,” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993), and must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111 (1979). The government “has no obligation to produce evidence to sustain the rationality of a statutory classification,” and “a statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not that basis has a foundation in the record.” Heller v. Doe, 509 U.S. 312, 320-21 (1993) (quotation marks, brackets, and citations omitted) (emphasis added). Under rational basis review, a court must accept a legislature’s generalizations even when there is an imperfect fit between means and ends. Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009) (citing Heller, 509 U.S. at 320). Furthermore, the courts may not “substitute [their] personal notions of good public policy for those of Congress.” Schweiker v. Wilson, 450 U.S. 221, 234 (1981). And on rational basis review, “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged
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distinction actually motivated the legislature.” Beach Commc’ns, 508 U.S. at 315. “[A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id. at 315.
The Supreme Court has recognized the existence of a broad category of regulations in which “Congress had to draw the line somewhere,” id. at 316, and where “inevitably . . . some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.” Mathews v. Diaz, 426 U.S. 67, 83 (1976); see also Schweiker, 450 U.S. at 238 (line-drawing statutes “inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle”) (quoting Mathews v. De Castro, 429 U.S. 181, 185 (1976)). In such cases, Congress’ decision about precisely where to draw the line is “virtually unreviewable.” Beach Commc’ns, 508 U.S. at 316. “The only remaining question” is whether the line that Congress drew was “patently arbitrary or irrational.” U.S. R.R. Ret. Bd., 449 U.S. at 177.
Here, it is beyond dispute that “some line is essential” to delineate the boundaries of the institution of marriage. Cf. Mathews, 426 U.S. at 83. No matter what definition of “marriage” one adopts, there will remain some relationships that fall outside that definition; the only question is precisely where the line will be drawn. Until 2004, the constant practice in this country had been to draw the line defining marriage as including relationships between one adult man and one adult woman who were not closely related by blood, and to exclude all other relationships. DOMA merely reinforced this historical line, and Plaintiffs simply wish that it had been drawn slightly differently.
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Deference to congressional line-drawing is particularly appropriate when it comes to questions of federal benefits because such a limitation always furthers the legitimate purpose of conserving the public fisc. For example, in Schweiker the Supreme Court considered an equal-protection challenge to Congress’ decision to extend Supplemental Security Income benefits to elderly, blind, or disabled citizens, including (on a more limited basis) to those residing in hospitals or nursing homes that receive Medicaid funds, but to deny SSI benefits to such persons residing in non-Medicaid facilities. 450 U.S. at 226. Applying rational basis review, the Supreme Court did not ask whether the denial of benefits to persons in non-Medicaid institutions would somehow further Congress’ purpose of aiding other aged, blind, or disabled people. Instead, the Court simply noted that Congress rationally could have concluded that the care and maintenance of persons in non-Medicaid institutions was primarily a state and not a federal responsibility, and upheld the statute on that basis. Id. at 23839.
1. Myriad Rational Bases Support DOMA. a. Congress Rationally Could Have Acted with Caution in the Face of the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution.
In DOMA, Congress acted to maintain the definition of marriage that was universally accepted in American law, and indeed largely normative throughout world history, until just a few years ago. See supra pp. 3-10; Murphy v. Ramsey, 114 U.S at 45 (marriage is “the union for life of one man and one woman”); Baker, 191 N.W.2d at 186 (“The institution of marriage as a union of man and woman,
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uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”); Adams, 486 F. Supp. at 1122 (“The term ‘marriage’ . . . necessarily and exclusively involves a contract, a status, and a relationship between persons of different sexes. That is the way the term ‘marriage’ is defined in every legal source I have examined, starting with Black’s Law Dictionary.”); Black’s Law Dictionary 756 (1st ed. 1891) (“the civil status of one man and one woman united in law for life”); Webster’s Third New Int’l Dictionary 1384 (1976) (“The state of being united to a person of the opposite sex as husband or wife.”). Whatever else may be at issue in the debate over marriage, no one can deny that Congress reasonably could have found the institution of central importance to civilized society, as it has been virtually everywhere for all of recorded history.
Viewed in this light, Congress had a supremely rational basis to proceed with caution in considering whether to drop a criterion—opposite-sex couples— that until now has been an essential element of such an enormously important social concept as marriage. See 150 Cong. Rec. S7994 (daily ed. July 13, 2004) (Sen. Clinton) (“marriage is not just a bond but a sacred bond between a man and a woman” and is “the fundamental bedrock principle that exists between a man and a woman, going back into the midst of history as one of the foundational institutions of history and humanity and civilization”). Congress’ valid and specifically declared purpose of “nurturing” the foundational institution of
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marriage, and all the social benefits that flow from it, House Report at 12, would more than justify its acting with caution.7
As an empirical matter, the long-term social consequences of granting legal recognition to same-sex relationships remain unknown. In these circumstances, Congress was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution. See 150 Cong. Rec. S2836 (daily ed. Mar. 22, 2004) (Sen. Cornyn) (“The institution of marriage is just too important to leave to chance. . . . The burden of proof is on those who seek to experiment with traditional marriage, an institution that has sustained society for countless generations.”); 150 Cong. Rec. S7880 (daily ed. July 9, 2004) (Sen. Hatch) (“The jury is out on what the effects on children and society will be and only legislatures are institutionally-equipped to make these decisions. If nothing else, given the uncertainty of a radical change in a fundamental institution like marriage, popular representatives should be given deference on this issue.”); id. at S7887 (Sen. Frist) (calling same-sex marriage “a vast untested social experiment for which children will bear the ultimate consequences”); id. at S7888 (Sen. Sessions) (“I think anybody ought to be reluctant to up and change [the traditional definition of marriage]; to come along and say, well, you know, everybody has been doing this for 2000 years, but we think we ought to try
7 As was explained above, see supra pp. 23-26, Congress did not “ban” gay marriage in DOMA, instead leaving that question to the states. But it did express a policy judgment that, even if states choose to experiment in this fashion, it would be unwise or at least premature for the United States to throw its weight behind the venture.
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something different.”); 150 Cong. Rec. S7914 (daily ed. July 12, 2004) (Sen. Kyl) (“We cannot strip marriage of its core—that it be the union of a man and woman—and expect the institution to survive.”); 150 Cong. Rec. S8089 (daily ed. July 14, 2004) (Sen. Smith) (“[W]hen we tinker with the most basic institution that governs relationships of men and women, we are tinkering with the foundations of our culture, our civilization, our Nation, and our future.”); 152 Cong. Rec. S5473 (daily ed. June 6, 2006) (Sen. Talent) (“[T]he evidence is not even close to showing that we can feel comfortable making a fundamental change in how we define marriage so as to include same-sex marriage within the definition.”).
In other words, in DOMA, Congress rationally could distinguish between opposite-sex marriage and same-sex marriage because opposite-sex marriage is a deeply rooted, historic institution—and a fundamental constitutional right—and same-sex marriage is neither of those things and, by comparison with our civilization’s appreciation of traditional marriage, a relative unknown. See supra pp. 19-23. Traditional marriage, to borrow the Supreme Court’s description of another longstanding practice, “is deeply embedded in the history and tradition of this country” and “has become part of the fabric of our society.” Marsh v. Chambers, 463 U.S. 783, 786, 792 (1983). In sharp contrast, same-sex marriage has existed as a legal right in some American jurisdictions only since 2004, and did not exist at all in 1996.
To be sure, “[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.” Id. at 790. Because DOMA does not implicate a
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suspect class, Congress rationally could decide to adhere to the historic, fundamental-rights definition of marriage—for purposes of federal law only, and without prohibiting any marital arrangements that a particular state might choose to permit. Consistent with equal protection principles, Congress reasonably could choose to extend federal benefits based on the historic definition of marriage rather than a recently-minted definition that would encompass same-sex marriages. See Lawrence, 539 U.S. at 585 (O’Connor, J., concurring) (“preserving the traditional institution of marriage” is a rational basis for “laws distinguishing between heterosexuals and homosexuals”); cf. Regan v. Taxation With Representation, 461 U.S. 540, 550-51 (1983) (holding that it was “not irrational for Congress to decide that, even though it will not subsidize substantial lobbying by charities generally, it will subsidize lobbying by veterans’ organizations” because “[o]ur country has a long standing policy of compensating veterans for their past contributions by providing them with numerous advantages”). And in choosing to define marriage as it did in Section 3 of DOMA, Congress reasonably could rely upon the Supreme Court’s decision in Baker.
b. Congress Rationally Could Have Acted to Protect the Public Fisc and Preserve the Balance Struck by Earlier Congresses in Allocating Federal Benefits and Burdens.
Wholly apart from the broader debate about the definition of marriage, Congress had ample rational bases for preserving the traditional definition of marriage for the specific purpose of allocating federal benefits and burdens, which is all that Section 3 of DOMA addresses. In particular, by maintaining the traditional definition of marriage, Congress preserved both the public fisc and the
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legislative judgments of countless earlier Congresses that used terms like
“marriage” and “spouse” with reference to traditional marriages and traditional
marriages alone.
First, unlike state laws confining marriage to the traditional definition,
DOMA is justified by a unique and independent federal interest—the protection of
the public fisc. Although DOMA applies to both federal burdens as well as
benefits, on balance, Congress reasonably could have concluded that a more restricted definition of marriage would save money and preserve the federal fisc.8
That is certainly the case with respect to the application of DOMA challenged
here. In the context of a statute that apportions federal benefits, saving money by
declining to expand pre-existing eligibility requirements is itself a rational basis.
Congress expressly relied on this rationale in enacting DOMA. See House Rep. at
18.
Furthermore, the particular context of DOMA makes that judgment
particularly rational. DOMA recognized that a host of pre-existing federal statutes
allocating benefits and, in some cases, burdens all necessarily were premised on
8 In 2004, the Congressional Budget Office opined that treating same-sex couples as married under federal law would result in so many of them becoming ineligible for federal means-tested benefits (after the incomes of their same-sex partners were included) that it would result in a net benefit to the Treasury, even after consideration of the resultant tax revenue decrease. Douglas Holtz-Eakin, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21SameSexMarriage.pdf. This report is a little more than nine pages in length, lacks a high degree of detailed analysis, and, of course, did not exist in 1996. In any event its estimate—and that is all it claims to be—that marriage actually would constitute a net fiscal detriment to same-sex couples as a class is implausible enough that Congress rationally could have chosen to reject it even if it had existed in 1996.
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the traditional definition of marriage. Pre-DOMA statutes that classified by marital status used the traditional definition of marriage because at the time of classification there was no other definition. Each of those statutes involved its own unique legislative debate about the importance of the benefit and the countervailing importance of fiscal restraint and related issues. In the case of the estate tax, the impact on tax revenues would loom large, while in the immigration context, the total level of immigration and asylum requests might have been relevant. But whatever the precise dynamic of the earlier debates, by preserving the traditional definition of marriage, Congress acted in 1996 to preserve the balance between the objectives of hundreds of federal programs and the countervailing concerns, such as fiscal constraint. DOMA thus not only conserves the federal fisc, but even apart from the net effect on the fisc, it preserves the balance struck in countless earlier congressional debates. In the context of federal spending, that is surely a rational basis.
c. Congress Rationally Could Have Acted to Provide for Consistency in Eligibility for Federal Benefits Based on Marital Status.
There is another rational basis for DOMA rooted in its unique character as a federal statute, with no precise analog in the context of state definitions of marriage: The federal interest in uniform treatment of federal benefits. Congress rationally could decide to base eligibility for federal benefits on the traditional definition of marriage to avoid arbitrariness and inconsistency in such eligibility. See 142 Cong. Rec. S4870 (daily ed. May 8, 1996) (Sen. Nickles) (DOMA “will eliminate legal uncertainty concerning Federal benefits”); 142 Cong. Rec. S10121
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(daily ed. Sept. 10, 1996) (Sen. Ashcroft) (stating that federal definition “is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently;” and “people in different States would have different eligibility to receive Federal benefits, which would be inappropriate”).
Opposite-sex couples can, of course, marry in every American jurisdiction while same-sex couples can marry in only a few states and the District of Columbia. If same-sex couples were eligible for federal marriage benefits, some same-sex couples would be eligible and some would not depending on the vagaries of state law. A same-sex couple living in a same-sex marriage state could marry and become eligible for federal benefits, whereas a couple residing in a non-same-sex marriage state could not do so in their home state.
More confusion would arise regarding the status of a same-sex couple that obtains a marriage license in a state where same-sex marriage licenses are available but resides in a state where same-sex marriage is not permitted. Such a couple might or might not be recognized as “married” in their state of residence. See 152 Cong. Rec. S5481 (daily ed. June 6, 2006) (Sen. Carper) (“If we have a same-sex couple in Delaware who decide to go to another country or another place where same-sex marriages are allowed, and then that couple comes back to Delaware and claims they are married, they are not married in my State.”). Differing state rules about the recognition of foreign same-sex marriage licenses add further complexity and disuniformity. Compare, e.g., Mass. Gen. Laws Ann. ch. 207 § 10 (West 2011) (recognizing out-of-state same-sex marriages); and
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Marriage—Whether Out-of-State Same-Sex Marriage That Is Valid in the State of

Celebration May Be Recognized in Maryland, 95 Md. Op. Att’y Gen. 3, 2010 WL

886002 (Feb. 23, 2010) (predicting that Maryland would recognize foreign same-

sex marriages despite not permitting in-state celebrations), with Recognition in

New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and

Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to

the Laws of Other States and Foreign Nations, Op. No. 3-2007, N.J. Op. Att’y Gen.,

2007 WL 749807 (Feb. 16, 2007) (foreign same-sex marriages recognized as civil

unions) and with, e.g., Okla. Const. art. II, § 35 (West, Westlaw current with

amendments through Nov. 1, 2010) (declining recognition); Fla. Const. art I, § 27

(West, Westlaw current through Nov. 4, 2008 General Election) (same); and 750 Ill.

Comp. Stat. Ann. § 5/216 (West 2011) (same). In enacting DOMA Section 3,

Congress rationally could and did decide to avoid creating such a patchwork.

See 142 Cong. Rec. S10121 (daily ed. Sept. 10, 1996) (Sen. Ashcroft) (discussed

supra pp. 30-33); see also 150 Cong. Rec. S7966 (daily ed. July 13, 2004) (Sen.

Inhofe) (same-sex marriage “should be handled on a Federal level [because]

people constantly travel and relocate across State lines throughout the Nation.

Same-sex couples are already traveling across country to get married”).

Congress’ interest in a uniform defi nition of ma rriage for purposes of

federal benefits based on marital status also is revealed b y Section 2 of DOMA ,

which provides:

No State, territory , or possessi on of the United States, or

Indian tribe, shall be required to give effect to an y public act,

record, or judicial proceedin g of any other State, territory,

possession, or tribe respecting a relationship betw

een

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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. 28 U.S.C. § 1738c. Congress foresaw that, with the advent of same-sex marriage, same-sex couples residing in jurisdictions where same-sex marriage is not permitted would travel to jurisdictions that issue same-sex marriage licenses to become married and then return home. And that is exactly what has happened, including in this case. See 150 Cong. Rec. S7961 (daily ed. July 13, 2004) (Sen. Hutchison) (“Today, same-sex couples from 46 States have traveled to Massachusetts, California, and Oregon to receive marriage licenses with the intention of returning to their respective States . . . .”). Section 2 of DOMA advances Congress’ interest in uniformity by ensuring that States that do not permit same-sex marriage need not recognize same-sex marriage licenses obtained out of state.
d. Congress Rationally Could Have Acted to Avoid Creating a Social Understanding That Begetting and Rearing Children Is Not Inextricably Bound up with Marriage.
Beyond these bases for the uniquely federal actions taken to address federal benefits and burdens in 1996, Congress could and did rely on the rational bases that support traditional marriage itself. Importantly, the rationales discussed above provide independent rational bases for the federal action that have no precise analog in the context of state decisions to maintain the traditional definition. But, in addition, Congress’ action could and did draw on the underlying rational bases for the traditional definition itself. Whether or not same-sex marriages are as beneficial to society as traditional marriages in other
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respects, it would have been reasonable for Congress to have been concerned that extending the definition of marriage to same-sex relationships—which, by their nature, do not involve the same concerns with unplanned pregnancies and which are (and particularly in 1996, were) less likely to involve children at all— would weaken society’s understanding of the importance of marriage for children. Accordingly, Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside the marital context. Cf. 150 Cong. Rec. S7922 (daily ed. July 12, 2004) (Sen. Cornyn) (“[C]ountless statistics and research attest to the fact that when marriage becomes less important because it is expanded beyond its traditional definition to include other arrangements, that untoward consequences such as greater out-of-wedlock childbirths occur.”); id. at S7927 (Sen. Brownback) (“There is a real question about the future of societies that do not uphold traditional marriage.”).
In fact, in 2004 Congress heard testimony vividly illustrating the impact on communities of racial minorities of the corrosion of the social sense that children are a fundamental purpose of marriage.9 See Judicial Activism v. Democracy:
9 This testimony obviously was not before Congress as a formal matter in 1996 when it enacted DOMA, but “[t]he absence of legislative facts explaining the distinction on the record has no significance in rational-basis analysis,” because “a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at 315 (citation, quotation marks, and brackets omitted). And, while this testimony was in the context of marriage in general rather than same-sex marriage in particular, it reveals Congress’ concern with the strength of the societal link between marriage
(Continued)
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Nat’l Implications of the Mass. Goodrich Decision & Judicial Invalidation of Traditional Marriage Laws, Hrg. Before S. Subcomm. on the Constitution, 108th Cong. at 10 (Mar. 3, 2004) (testimony of Rev. Richard Richardson) (“That [traditional] institution [of marriage] plays a critical role in ensuring the progress and prosperity of the black family and the black community at large. . . . The dilution of the ideal—of procreation and child-rearing within the marriage of one man and one woman—has already had a devastating effect on [the AfricanAmerican] community.”); id. at 12-15 (testimony of Pastor Daniel de Leon) (similar observations regarding the importance of traditional marriage to the Hispanic community).
Members of Congress also expressed a concern in 2004 that legal recognition of same-sex relationships has had precisely this effect in Scandinavia and the Netherlands. See 150 Cong. Rec. S7921 (daily ed. July 12, 2004) (Sen. Cornyn) (“Today, about 15 years after Denmark created this new institution [in 1989], a majority of children in Scandinavia are born out of wedlock, including more than 50 percent in Norway, and 55 percent of the children in Sweden, and in Denmark, a full 60 percent of first-born children have unmarried parents. In Scandinavia, as a whole, traditional marriage is now an institution entirely separated from the idea of child rearing or childbearing or child-rearing . . . .”); 150 Cong. Rec. H5951 (daily ed. July 19, 2004) (Rep. Osborne) (“[Several Scandinavian countries] have changed the traditional definition of marriage. The
and children. In enacting DOMA, Congress rationally could have anticipated the kinds of problems illustrated by the 2004 hearings.
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result has been a decline in traditional marriage and a surge in out-of-wedlock

births in these countries.”); 150 Cong. Rec. S7880 (daily ed. July 9, 2004) (Sen.

Hatch) (noting scholars’ findings regarding the “marked decline in marriage

culture” and “spectacular rise in the number of illegitimate births” in the

Netherlands since adoption of domestic partnerships and same-sex marriage);

150 Cong. Rec. S8003-07 (daily ed. July 13, 2004) (reprinting Stanley Kurtz, The

End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004)); 150 Cong. Rec.

H7912 (daily ed., Sept. 30, 2004) (Rep. Pence) (“In some parts of Norway, as many

as 80 percent of first-born children and two-thirds of subsequent children are

now born out of wedlock.”). While some have disputed this conclusion, such

disagreement is hardly sufficient to render Congress’ decision irrational.

Members of Congress noted the publication in July 2004 of an open letter

by five Dutch scholars cautioning that, while “definitive scientific evidence” does

not yet exist, “there are good reasons to believe the decline in Dutch marriage

may be connected to the successful public campaign for the opening of marriage

to same-sex couples in The Netherlands.” 150 Cong. Rec. S7928 (daily ed. July

12, 2004). They reported:

Until the late 1980[]s, marriage w as a flourishing institution in

The Netherlands. . . . It seems, how ever, that legal and social

experiments in the 1990[]s h ave had an adverse ef fect on the

reputation of man’s most importan t institution. Over the past

fifteen years, the number

of mar riages has declined

substantially, both in absolute and relative terms . . . . Th is

same period also w itnessed a spectacul ar rise in the number

of illegitimate births—in 1989 one in ten children were born out

of wedlock (11 percent), b y 2003 that number had risen to

almost one in three (31 percent). . . . It seems the Dutch

increasingly regard marriage as no longer relevant to their

own lives or that of their offspring.

45

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 56 of 67
Id. at S7927. In short, in enacting DOMA, Congress rationally could have been concerned about the effect that changing the federal definition of marriage could have on the institution of marriage and out-of-wedlock births.
e. Congress Rationally Could Have Acted to Foster Marriages That Provide Children with Parents of Both Sexes.
Another rationale that supports both the traditional understanding of marriage and Congress’ passage of DOMA is the differences between men and women. Congress rationally could distinguish between opposite-sex couples and same-sex couples based on biological differences. The equal protection guarantee “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne, 473 U.S. at 439; see Miller v. Albright, 523 U.S. 420, 445 (1998) (plurality opinion) (recognizing that “biological differences” between paternity and maternity can “provide a relevant basis” for statutory classification). Congress rationally could decide to base eligibility for federal marital benefits on the basic biological differences between the two classes of relationships. Opposite-sex spouses generally are capable of procreating with each other; same-sex couples are not. 150 Cong. Rec. S7913 (daily ed. July 12, 2004) (Sen. Bunning) (“Only a man and a woman have the ability to create children. It is the law of nature.”). Indeed, most sexually-active opposite-sex relationships have an inherent ability to produce children whether or not the spouses are seeking to do so at any given time. And the fact that opposite-sex relationships produce unplanned and unintended pregnancies is at the heart of society’s traditional interest in promoting the institution of marriage and
46

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 57 of 67
providing incentives for these unplanned offspring to be raised in the context of a traditional family unit. Whatever else is true of the procreative potential of samesex couples, the phenomena of unplanned and unintended pregnancies is limited to opposite-sex couples. Congress rationally could have concluded that a special legal category was necessary to recognize the special concerns that face a couple who must take account of this inherent possibility of their relationship, and to support and incentivize such relationships despite the increased responsibility they place upon the spouses.
In enacting DOMA, Congress found that “society recognizes the institution of marriage and grants married persons preferred legal status” because of the “deep and abiding interest in encouraging responsible procreation and childrearing.” House Rep. at 12, 13. This rationale explains DOMA’s definition of marriage as between one man and one woman. Encouraging couples to raise children in the context of the traditional marital family is, without question, a legitimate objective,10 and Congress rationally could conclude that this objective is advanced by extending benefits to couples meeting the historic definition of marriage. See, e.g., Irizarry v. Bd. of Educ. of Chi., 251 F.3d 604, 607 (7th Cir. 2001) (“[S]o far as heterosexuals are concerned, the evidence that” marriage “provides a stable and nourishing framework for child rearing refutes any claim that policies designed to promote marriage are irrational.”) (citing Linda J. Waite
10 See, e.g., Lofton, 358 F.3d at 819 (“It is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society . . . .”).
47

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 58 of 67
& Maggie Gallagher, The Case for Marriage: Why Married People are Happier, Healthier, and Better Off Financially (2000); David Popenoe, Life without Father: Compelling New Evidence That Fatherhood & Marriage are Indispensable for the Good of Children & Society (1996); George W. Dent, Jr., The Defense of Traditional Marriage, 15 J.L. & Pol. 581 (1999)); Lofton, 358 F.3d at 820 (“Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.”); see also Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (noting that “considerable scholarly research . . . indicates that ‘[t]he optimal situation for the child is to have both an involved mother and an involved father’”) (quoting H. Biller, Paternal Deprivation 10 (1974)); 150 Cong. Rec. S683 (daily ed. Feb. 6, 2004) (Sen. Cornyn) (traditional marriage “has been found over countless years to benefit children, to provide a stable emotional and economic foundation for children so that they then prosper and become responsible, productive adults”); 150 Cong. Rec. S1507 (daily ed. Feb. 24, 2004) (traditional marriage is the “best and most optimal arrangement found yet in the history of mankind to have and raise children so that they will be productive citizens”).11
11 In 2004, Congress extensively reviewed the evidence that children whose mother or father is absent are comparatively worse off. See 150 Cong. Rec. S5894 (daily ed. May 20, 2004) (Sen. Brownback) (“a marriage between a man and a woman . . . is the best place to raise children according to all of our sociological data.”); 150 Cong. Rec. H5951 (daily ed. July 19, 2004) (Rep. Osborne) (“[R]esearch shows that children do better when they live with their biological father and mother in a long-term stable relationship. Twelve leading
(Continued)
48

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Congress also could “rationally decide that, for the welfare of children, it is
more important to promote stability and to avoid instability, in opposite-sex
[rather] than in same-sex relationships.” Hernandez, 855 N.E.2d at 7. This is
because “[h]eterosexual intercourse has a natural tendency to lead to the birth of
children; homosexual intercourse does not.” Id. Congress could have found that
family scholars summarized thousands of studies on child rearing as follows: children raised by both biological parents within a marriage are less likely to become unmarried parents, live in poverty, drop out of school, have poor grades, experience health problems, die as infants, abuse drugs and alcohol, experience mental illness, commit suicide, experience sexual and verbal abuse, engage in criminal behavior.”); 150 Cong. Rec. H7826 (daily ed. Sept. 29, 2004) (Rep. Pence) (citing Barbara Dafoe Whitehead, Dan Quayle Was Right, The Atlantic, Apr. 1993, at 47; 150 Cong. Rec. S7914 (daily ed. July 12, 2004) (Sen. Kyl) (noting the “overwhelming body of social science testimony” that “children on average experience the highest levels of overall well-being in the context of healthy marital relationships”); id. at S7926 (Sen. Brownback) (“Study after study shows children do best in a home with a married, biological mother and father . . . . ‘[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage.’”) (quoting Child Trends organization); 150 Cong. Rec. S7994 (daily ed. July 13, 2004) (Sen. Clinton) (recognizing that marriage’s “primary, principal role during th[e] millennia has been the raising and socializing of children for the society into which they become adults”); 152 Cong. Rec. H5295 (daily ed. July 18, 2006) (Rep. Ryan) (citing President Clinton’s domestic policy advisor, Dr. Bill Galston); 150 Cong. Rec. S7886 (daily ed. July 9, 2004) (Sen. Frist) (“Marriage is the union between a man and a woman for the purpose of procreation, and has been, until this point, one of the great settled questions of human history and culture.”); id. at S7889 (Sen. Sessions) (“The reason a State has an interest in preserving marriage, traditional marriage, is because children are produced in that arrangement.”); 150 Cong. Rec. H7896 (daily ed. Sept. 30, 2004) (Rep. Musgrave); 150 Cong. Rec. S7967 (daily ed. July 13, 2004) (Sen. Inhofe) (“The evidence of the benefits to children being raised by a mother and father is overwhelming.”) (citing, inter alia, the Senate testimony and research of Barbara Dafoe Whitehead and Patrick Fagan); 150 Cong. Rec. S8088 (daily ed. July 14, 2004) (Sen. McConnell) (“Two decades of modern social science have arrived at the conclusion borne out by at least two millennia of human experience: that family structure matters for children and hence for society, and the family structure that helps children the most is a family headed by a mom and a dad.”).
49

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“it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman . . . and find that this will continue to be true.” Id. Accordingly, Congress “could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite sex couples who make a solemn, long-term commitment to each other.” Id. Furthermore, Congress could “find that this rationale for marriage does not apply with comparable force to same-sex couples” and that “unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.” Id. Once again, the general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those different groups differently. That is all rational basis review requires.
Finally, the experience of a child raised by a man and a woman likely differs from that of a child raised by same-sex caregivers. See Popenoe, supra p. 48, at 146 (“The burden of social science evidence supports the idea that genderdifferentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.”); James Q. Wilson, The Marriage Problem 169 (2002) (“The weight of scientific evidence seems clearly to support the view that fathers matter.”); Norval D. Glenn, The Struggle for Same-Sex Marriage, 41 Soc’y 27 (2004) (“[T]here are strong theoretical reasons for believing that both fathers and mothers are important, and
50

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the huge amount of evidence of relatively poor average outcomes among fatherless children makes it seem unlikely that these outcomes are solely the result of the correlates of fatherlessness and not of fatherlessness itself.”); United States v. Virginia, 518 U.S. 515, 533 (1996) (“The two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both.”) (quotation marks and brackets omitted); 150 Cong. Rec. H7913 (daily ed. Sept. 30, 2004) (Rep. Jo Ann Davis) (mothers and fathers play important but different roles in child-rearing). The federal courts that have upheld DOMA all have recognized that encouraging child-rearing by a married mother and father is a legitimate governmental interest, and that DOMA furthers that interest. See Wilson, 354 F. Supp. 2d at 1308-09; Smelt, 374 F. Supp. 2d at 880; In re Kandu, 315 B.R. at 146-47. Given the evidence that sexuallydifferentiated parents matter and the basic intuition that this evidence confirms, Congress rationally could conclude that each child will benefit from (1) having a role model of his or her own sex as a parent and (2) from being exposed within the family to how that parent relates to an adult of the opposite sex. 150 Cong. Rec. S1507 (daily ed. Feb. 24, 2004) (Sen. Cornyn) (marital family consisting of a husband and a wife provides role models for children); 150 Cong. Rec. S7960 (daily ed. July 13, 2004) (Sen. Talent) (noting that “one thing that two people of the same sex cannot give children” is “a mom and a dad”) (emphasis added); 150 Cong. Rec. H5951-52 (daily ed. July 19, 2004) (Rep. Osborne) (“a man and a woman produce a child” and each makes “a unique contribution” to a child’s well-being); 150 Cong. Rec. H7892 (daily ed. Sept. 30, 2004) (Rep. Akin) (“[W]e all
51

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 62 of 67
know from experience that kids are best off when they have a mom and a dad.”). But while some same-sex couples may prove capable parents in many regards, children raised by them inevitably will miss out on one or both of these benefits. State constitutional amendments and statutes defining marriage in accord with its historic definition also have been upheld on this basis. See, e.g., Citizens for Equal Prot., 455 F.3d at 867-68; In re Marriage of J.B. & H.B., 326 S.W.3d at 677-78; Conaway, 932 A.2d at 630-34; Andersen, 138 P.3d at 982-85; Hernandez, 855 N.E.2d at 7-8; Morrison, 821 N.E.2d at 22-27; Standhardt, 77 P.3d at 462-64; see also Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773 (2002); Lynn D. Wardle, “Multiply and Replenish”: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol’y 771 (2001).
Moreover, the debate about the child-rearing abilities of same-sex couples who undergo significant advanced planning to have children need not be resolved or even engaged in order to uphold DOMA. Concerns about the experience of children who are the product of unintended pregnancies and the provision of incentives for those children to be raised by married couples are rational bases for providing incentives for traditional marriages in the first place. For those purposes, the relevant comparison is unplanned children raised by two married parents versus unplanned children raised in an alternative arrangement. Congress’ decision to preserve that traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring is rational because of the biological differences.
52

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II. ANY REDEFINITION OF MARRIAGE SHOULD BE LEFT TO THE DEMOCRATIC PROCESS. Any effort to redefine the institution of marriage as something other than
the union of one man and one woman is a matter best left in the hands of the elected, politically accountable branches of the federal government and the citizenry through the democratic process. As the Ninth Circuit has noted, “it is difficult to imagine an area more fraught with sensitive social policy considerations in which federal courts should not involve themselves if there is an alternative.” Smelt, 447 F.3d at 681. And there is an alternative: Determining the federal rights of same-sex couples “remains a fit topic for [Congress] rather than the courts.” Id. at 684 n.34 (citing several bills pending in the 109th Congress). Those that support same sex-marriage do not lack political power in Congress or the executive branch. See, e.g., Don’t Ask Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010); Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 75 Fed. Reg. 32247 (June 2, 2010); Presidential Memorandum, Federal Benefits and Non-Discrimination, 74 Fed. Reg. 29393 (June 17, 2009) (directing State Department and OPM to extend benefits “to qualified same-sex domestic partners of Federal employees” consistent with federal law). See generally Mem. in Supp. of House’s Opp’n to Pls.’ Mot. for Summ. J. at 12-21 (Aug. 15, 2011). Unlike the blunt, binary instrument of judicial review, which only can declare a practice to be constitutional or not, the legislative process is well-suited to accommodating differing viewpoints and finding satisfactory compromises between competing interests.
53

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Congress and the states are the proper fora for resolving the issue of same-sex marriage. Just last month, New York—the nation’s third-mostpopulous state—enacted same-sex marriage through the democratic process. It is “not this Court’s role” to declare same-sex marriage a constitutional right and eliminate that discussion and resolution. Wilson, 354 F. Supp. 2d at 1309. “The legislatures of the individual states may decide to permit same-sex marriage or the Supreme Court may decide to overturn its precedent and strike down DOMA. But, until then, this Court is constrained to [up]hold DOMA.” Id.; see also In re Kandu, 315 B.R. at 145 (“[T]he creation of new and unique rights is more properly reserved for the people through the legislative process.”); Hernandez, 855 N.E.2d at 9 (“[A]ny expansion of the traditional definition of marriage should come from the Legislature.”). Indeed, “it would not be proper for judges to use the vague concept of ‘equal protection’ to undermine marriage just because it is a heterosexual institution.” Irizarry, 251 F.3d at 609. The equal protection doctrine “is not a charter for restructuring the historic institution of marriage by judicial legislation.” In re Marriage of J.B. & H.B., 326 S.W.3d at 681 n.12 (brackets omitted) (citing Baker, 191 N.W.2d at 186).
CONCLUSION For all of the foregoing reasons, the House respectfully requests that this action be dismissed with prejudice.
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Respectfully submitted,
/s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806
Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives
OF COUNSEL:
Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360
August 15, 2011

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 66 of 67
CERTIFICATE OF SERVICE
I certify that on August 15, 2011, I served one copy of the Memorandum of Law of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives in Support of Its Motion to Dismiss by CM/ECF and by electronic mail (.pdf format) on the following:
Gary D. Buseck Janson Wu Mary L. Bonauto Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 gbuseck@glad.org jwu@glad.org mbonauto@glad.org
Karen L. Dowd Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 kdowd@hortonshieldsknox.com kbartschi@hsklawfirm.com
David J. Nagle Richard L. Jones Sullivan & Worchester LLP One Post Office Square Boston, MA 02109 dnagle@sandw.com rjones@sandw.com

Case 3:10-cv-01750-VLB Document 81 Filed 08/15/11 Page 67 of 67
Paul M. Smith Luke C. Platzer Daniel I. Weiner Matthew J. Dunne Jenner & Block 1099 New York Ave., N.W., Suite 900 Washington, DC 20001-4412 psmith@jenner.com lplatzer@jenner.com dweiner@jenner.com mdunne@jenner.com
David Christopher Nelson U.S. Attorney’s Office – HTFD 450 Main St., Room 328 Hartford, CT 06103 david.c.nelson@usdoj.gov
Judson O. Littleton UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION 20 Massachusetts Ave., N.W., Seventh Floor Washington, DC 20530 judson.o.littleton@usdoj.gov
/s/ Kerry W. Kircher Kerry W. Kircher

 </s> Case 3:10-cv-01750-VLB Document 114 Filed 07/04/12 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JOANNE PEDERSEN, et al.,

:

Plaintiffs,

:

:

v.

:

:

OFFICE OF PERSONNEL

:

MANAGEMENT, et al.,

:

Defendants,

:

:

v.

:

:

BIPARTISAN LEGAL ADVISORY GROUP :

OF THE UNITED STATES HOUSE OF

:

REPRESENTATIVES ,

:

Intervenor-Defendant.

:

CIVIL ACTION NO. 3:10-cv-1750 (VLB)
July 4, 2012

ORDER DENYING INTERVENOR-DEFENDANT’S MOTION TO STAY [Dkt. #108]
The Intervenor-Defendant, the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”), has asked the Court to stay the proceedings in this matter and to delay resolution of the currently pending dispositive motions in light of the appeal pending in the Second Circuit in the case of Windsor v. United States, No. 10-cv-08435 (S.D.N.Y.). BLAG notes that the Second Circuit has now set an expedited briefing schedule for the Windsor case and asserts that the issue before this Court “is precisely the issue now before the Second Circuit in Windsor.” [Dkt. #108, p. 3].
“A stay in a civil case is an extraordinary remedy.” Hicks v. City of N.Y., 268 F.Supp.2d 238, 241 (E.D.N.Y. 2003). Whether or not to grant a motion to stay is “an exercise of judicial discretion,” and the appropriateness of a stay “is dependent upon the circumstances of the particular case.” Virginian Ry. Co. v.

Case 3:10-cv-01750-VLB Document 114 Filed 07/04/12 Page 2 of 5
U.S., 272 U.S. 658, 672-73 (1926). Consideration of a motion to stay focuses primarily on four factors, including: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 566 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The party “seeking the stay ‘bears the burden of establishing its need.’” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 97 (2d Cir. 2012) (quoting Clinton v. Jones, 520 U.S. 681, 708 (1997)). “Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Landis v. North American Co., 299 U.S. 248, 255 (1936).
Addressing first BLAG’s assertion that the current case presents “precisely the issue now before the Second Circuit in Windsor,” [Dkt. #108, p. 3], the Court finds that the Windsor case is distinguishable where the Windsor case was filed by a single Plaintiff whose standing has been contested by the Intervenor-Defendant BLAG. For this reason, BLAG’s assertion that the Second Circuit’s review of Windsor on appeal would dispose of the issues in this case is speculative, as the Second Circuit’s analysis of Windsor could in fact be limited solely to the question of standing.
In considering the four factors identified by the Supreme Court to be the focus of a court’s review of a motion to stay, the Court finds that the IntervenorDefendant has failed to sustain its burden to establish the need for a stay.

Case 3:10-cv-01750-VLB Document 114 Filed 07/04/12 Page 3 of 5
Without addressing the first factor regarding a likelihood of success on the merits, BLAG has failed to articulate any suggestion that it would be “irreparably injured absent a stay,” nor has it suggested that any other party would be “substantially injured” if the case were to proceed. Nken, 566 U.S. at 434. Briefing on the currently pending dispositive motions has been completed for months, such that no further effort or expenditure is required from the parties in order to obtain disposition of the matter. The procedural posture of this case, in which the briefing on dispositive motions has been fully completed, is therefore distinguishable from McLaughlin v. Panetta, No. 1-11-cv-11905 (D.Mass), which was stayed prior to any dispositive motions in light of the First Circuit’s consideration of an older case challenging the constitutionality of Section 3 of DOMA.
Moreover, a stay in this matter would not conserve judicial economy, where, at the time the motion to stay was filed, the Court had already reviewed the parties’ pleadings, the law upon which the pleadings relied, had undertaken significant research and analysis, and had begun the process of drafting the decision, expending a substantial number of hours on the matter. Further, as the Court has already acknowledged, the Second Circuit’s review of Windsor may not necessarily dispose of the issues in this matter, and therefore judicial economy will not be conserved by imposing a stay where the possibility remains that the Court would ultimately need to resume consideration of the pending motions.
Lastly, the Court finds that public interest weighs against the entry of a stay in this matter, as the challenge to the constitutionality of Section 3 of DOMA

Case 3:10-cv-01750-VLB Document 114 Filed 07/04/12 Page 4 of 5
presents an important issue to the nation as a whole such that the Second Circuit and potentially the Supreme Court would benefit from as many opinions and analyses as possible to enrich their review.
The Court must also consider the potential harm to the Plaintiffs, as the opponents of this motion. The Court finds that the harm which would befall the Plaintiffs if a stay were to be entered is significant. Entering a stay in this matter would essentially deny the Plaintiffs the right to advocate for their own interests, asking them instead to “stand aside while a litigant in another [case] settles the rule of law that will define the rights of both [parties].” Landis, 299 U.S. at 255. Therefore, the Court concludes that there would be no benefit gained from granting a stay in this matter, which in essence, asks the Court to abstain from resolving the pending motions so that other litigants may proceed to their exclusion.

_______/s/_ Hon. United
Dated at Hartford, Connecticut: July 4, 2012

IT IS SO ORDERED.
___________ Vanessa L. Bryant
States District Judge

Case 3:10-cv-01750-VLB Document 114 Filed 07/04/12 Page 5 of 5

 </s> Case 3:10-cv-01750-VLB Document 116 Filed 07/31/12 Page 1 of 104

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JOANNE PEDERSEN, et al.,

:

Plaintiffs,

:

:

v.

:

:

OFFICE OF PERSONNEL

:

MANAGEMENT, et al.,

:

Defendants,

:

:

v.

:

:

BIPARTISAN LEGAL ADVISORY GROUP :

OF THE UNITED STATES HOUSE OF

:

REPRESENTATIVES ,

:

Intervenor-Defendant.

:

CIVIL ACTION NO. 3:10-cv-1750 (VLB)
July 31, 2012

MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO
DISMISS [Dkt. #80] Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the
1

Case 3:10-cv-01750-VLB Document 116 Filed 07/31/12 Page 2 of 104

plethora of federal laws which rely on DOMA’s definitions. Currently pending

before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the

Plaintiffs asserting that they are entitled to judgment as a matter of law, along

with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the

Bipartisan Legal Advisor Group of the United States House of Representatives,

(“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both

motions seek ultimate resolution of this matter, the Court will consider and

review the motions simultaneously, addressing the fundamental question of

whether or not Section 3 of DOMA can withstand the applicable level of

constitutional scrutiny.

I.

Factual Background

A. History of DOMA

DOMA was enacted on September 21, 1996 and signed into law by

President Clinton after passing both houses of Congress with large majorities.

Section 3 of DOMA, the provision which is the subject of the Plaintiffs’

constitutional challenge, codifies the following definition of the terms “marriage”

and “spouse” as a matter 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.

1 U.S.C. §7. As expressly stated in the House Judiciary Committee Report on

DOMA, DOMA was drafted as “a response to a very particular development in the

2

Case 3:10-cv-01750-VLB Document 116 Filed 07/31/12 Page 3 of 104
State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 2-4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited statesanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and [. . . ] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newly-coined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage,
3

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ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new.items/d04353r.pdf. 2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)
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illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Foundation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913).
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Under these regulations, those eligible for coverage may elect to enroll for
individual coverage, or for both individual and family coverage. Id. (citing 5
U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to
“the spouse of an employee or annuitant [or] an unmarried dependent child under
22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the
demands of the workplace with the needs of families” by “entitl[ing] employees to
take reasonable leave for medical reasons, for the birth or adoption of a child,
and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible
employees to take up to twelve work-weeks of unpaid leave during any twelve-
month period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the
Department of Labor to implement the FMLA define the term “spouse” for
purposes of the FMLA as “a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.” 29 U.S.C.
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).
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§2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(I), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that defined-benefit pension plans are subject to both
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ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire 1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 143-44 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-
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sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 2715 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
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2. Same-Sex Marriage in Vermont On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission, http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into
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law on May 31, 2007. 2007–2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes SameSex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.html.
c. Plaintiffs’ Factual Backgrounds The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3]. Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by same-sex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.
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insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶6-7. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
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Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
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Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means
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only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household. Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for
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and purchase health care coverage on the private insurance market. Id. at ¶¶66-

67. Savoy applied to have his husband added to his existing health plan under

the FHEB Program and his application was denied. Id. at ¶¶69-70.

II.

Standards of Review

A. Motion to Dismiss

“‘To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.’”

Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a]

pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the

elements of a cause of action will not do.’ Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (citations and internal quotations omitted). “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short

of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (internal citations omitted).

In considering a motion to dismiss for failure to state a claim, the Court

should follow a “two-pronged approach” to evaluate the sufficiency of the

complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can

choose to begin by identifying pleadings that, because they are no more than

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conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment Summary judgment should be granted “if the movant show s that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law .’” Fed.R.Civ.P. 56(a). The movi ng party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining w hether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the part y against whom summary judgment is s ought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could re asonably support a ju ry's verdict for the nonmoving party , summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Ci r.2006) (internal quotation marks and citation omitted).
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“A party opposing summary judgment cannot defeat the motion by relying on

the allegations in his pleading, or on conclusor

y statements, or on mere

assertions that affidavits supporting the motion are not credible. At the summary

judgment stage of the proceeding, Plaintiffs are required to present admissible

evidence in support of their a llegations; allegations alone, w ithout evidence to

back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,

2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and

citations omitted); Martinez v. State of Connecticut , No. 3:09cv1341 (VLB), 2011

WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon

which a jur y could properl y proceed to f ind a verdict for the part y producing it

and upon w hom the onus of proof is imposed, such as w here the evidence

offered consists of conclusor y assertions w ithout further s upport in the record,

summary judgment may lie. Fincher v. Depository Trust and Clearance Co. , 604

F.3d 712 (2d Cir. 2010).

III.

Discussion

A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns

BLAG argues that those Plaintiffs who claim that DOMA prohibited them

from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj.

to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the

joint filing of married persons, 26 U.S.C. §6013, does not on its own extend to

same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a

“husband and wife may make a single return jointly of income taxes…” 26 U.S.C.

§6013(a). BLAG argues that these Plaintiffs lack standing “because the joint

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filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases' and ‘Controversies' and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’—injury-infact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631–32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise … [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26
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U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s genderneutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the
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reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial
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of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
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The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in the record,’… are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state
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law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection
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of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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 quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)).
The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or
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persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual
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orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99 (1982). Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships”. See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671
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F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J. dissenting) (acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deepseated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to
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equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification BLAG contends that sexual orientation has never been viewed as a suspect
or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasisuspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression
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before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class … Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. 640 n.1; Lawrence v. Texas, 529 U.S. 558, 529 n.1 (2003). In view
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of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of California noted “[w]hen the premise for a case's holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983-984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can … be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast
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majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); Ben-Shalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military's mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting
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Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Rostker v. Goldberg,
453 U.S. 57, 70 (1981) (acknowledging that “judicial deference to such
congressional exercise of authority is at its apogee when legislative action under
the congressional authority to raise and support armies and make rules and
regulations for their governance is challenged”). Considering the inimitable
circumstances attending military regulations and the uniquely deferential
approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on
Bowers, which was rejected in Lawrence, and relied on analyses in the deferential
military context rather than the more discretionary civilian context, the
precedential import of such authority is unpersuasive, particularly given the fact
that the Second Circuit has not had an opportunity to consider the matter.
The Court is mindful of the Supreme Court’s admonition that “‘respect for
the separation of powers’ should make courts reluctant to establish new suspect
classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne,
473 U.S. at 441). The Supreme Court has to date only recognized a handful of
5 The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.
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suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what
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constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors At the outset, this Court is guided by Justice Thurgood Marshall’s
approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ . . . must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the
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stereotype on which they are based, a history of unequal treatment requires

sensitivity to the prospect that its vestiges endure. In separating those groups

that are discrete and insular from those that are not, as in many important legal

distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations

omitted). Thus the Court’s analysis will be cognizant of social, cultural and

political perspectives grounded in experience as opposed to abstract logic and

an awareness that there is likely no single talisman that signals which groups are

the subject of classifications offensive to the principle of equal protection.

i.

History of Discrimination

The first factor courts consider is whether the class has suffered a history

of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries

there have been powerful voices to condemn homosexual conduct as immoral’”

and that “lesbians and gay men have suffered a long history of discrimination

and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG

responds that it “does not dispute that homosexuals have been subject to

discrimination” however BLAG questions the length of this history. This

acknowledgement is emblematic of the incidents of discrimination, including

annulation, negation, ostracism and isolation of the group which is the object of

discrimination resulting in the broader society’s lack of knowledge and

understanding of that group.

BLAG argues that the history of discrimination against homosexuals is

relatively short-lived and ostensibly the product of the twentieth century which

counsels against recognizing sexual orientation as a suspect or quasi-suspect

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class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].
Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey.html (“It’s important to note that there’s been a long history in the regulation of sexual acts
6 BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert's opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).
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of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the
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homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity
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emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment
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because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 11-86, at 10 (2009)).
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The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination…”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinksi, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of
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homosexuality is increasing, gay men and lesbians have endured a long history

of discrimination, both official and private.” Able v. United States, 968 F.Supp.

850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The

Able court noted that discrimination against homosexuality began in the second

half of the twelfth century and that the “‘earliest and most drastic legislation

against gay people enacted by any government of the High Middle Ages’ were

laws passed by the European conquerors of Jerusalem imposing death by

burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social

Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that

during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies,

and other groups, using the pink triangle as the symbol to designate

homosexuality.” Id. at 852.

In sum, the evidence in the record detailing the long history of anti-gay

discrimination which evolved from conduct-based proscriptions to status or

identity-based proscriptions perpetrated by federal, state and local governments

as well as private parties amply demonstrates that homosexuals have suffered a

long history of invidious discrimination. Moreover this conclusion is consistent

with the majority of cases which have meaningfully considered the question and

likewise held that homosexuals as a class have experienced a long history of

discrimination.

ii.

Ability to Contribute to Society

Plaintiffs argue “there can be no credible dispute about whether sexual

orientation bears a relation to one’s ‘ability to perform or contribute to society.’”

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[Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.
Certainly the recent repeal of “Don’t Ask Don’t Tell” and the military’s contemporaneous recognition of the long history of valiant honorable service of homosexual servicemen and women attests to the fact that homosexuals have made the ultimate contribution to society. Defense Secretary Leon Panetta recently highlighted these contributions and “thank[ed] gay and lesbian service members, LCGT civilians, and their families for their dedicated service to our country.” Leon Panetta, Secretary Penetta Video Message for Lesbian, Gay, Bisexual, Transgender Pride Month from the Pentagon, U.S. Dep’t. of Def. (June 15, 2012), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5062. Secretary Panetta stated that “[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you
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faithfully served your country with professionalism and courage. And just like your fellow service members, you put your country before yourself…The pursuit of equality is fundamental to the American story. The successful repeal of ‘Don’t Ask, Don’t Tell’ proved to the Nation that just like the country we defend, we share different backgrounds, different values, and different beliefs -- but together, we are the greatest military force in the world.” Id.
In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinksi, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 688, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation … bears no relation whatsoever to an individual’s ability to perform, or to participate
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in, or contribute to, society … If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable … that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court
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has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or physical disability … is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this
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factor weighs strongly in favor of recognizing sexual orientation as a quasi-

suspect or suspect class.

iii.

Defining or Immutable Characteristics

Another relevant consideration is whether the characteristic that defines

the class as a discrete group is immutable or otherwise not within the member’s

control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638

(1986)). It does not appear that this factor is necessary to trigger heightened

scrutiny in view of the Supreme Court’s recognition of suspect class to groups

with ostensibly mutable characteristics. The Supreme Court has held that

resident aliens constitute a suspect class despite the ability to opt out of the

class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977). Additionally,

one’s status as illegitimate may be subject to change and is therefore not a

strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431 (1998)

(acknowledging that illegitimate child may be legitimated by father). Further as

the Kerrigan court astutely observed “not infrequently, the United States

Supreme Court has omitted any reference to immutability in discussing the

identifying or distinguishing characteristic of a particular class.” Kerrigan, 289

Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 20, 25 (1973); Graham v. Richardson, 403

U.S. 365, 371-72 (1971)). Consequently, immutability is not an essential

requirement but merely one indication that the classification reflects “deep-

seated prejudice rather than legislative rationality in pursuit of some legitimate

objective.” Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20;

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Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peer-reviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be successful and involve some risk of harm.” Id. at ¶26 (citing APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force, available at http://www.apa.org/pi/lgbt/publications/therapeutic-response.pdf). The American Psychiatric Association, American Psychological Association, American
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Counseling Association, National Association of Social Workers and the American Academy of Pediatrics all “have adopted policy statements cautioning professionals and the public about these treatments.” Id. at ¶27. See also Perry v. Schwarzenegger, 704 F.Supp.2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”). Lastly, studies have also indicated that the majority of gay men and lesbians report that they experienced no choice or little choice about their sexual orientation. [Dkt. # 73, Peplau Aff., ¶25] (citing 2010 national survey conducted with representative sample of more than 650 self-identified lesbian, gay and bisexual adults, 88% of gay men reported that they had “no choice,” and 7% reported “very little choice” while 68% of lesbians responded they had “no choice at all” and 15% reported having “very little choice.”).
Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied by Plaintiffs’ own experts…These differing definitions show that these terms are amorphous and do not adequately describe a particular class.” [Dkt. #82, p. 2223]. Although there might be subtle semantic distinctions between each of these terms from an academic perspective, each term is principally defined as pertaining to same-sex attraction or sexual behavior and could not be understood without reference to this elemental concept. In fact, the colloquial definitions of
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“gay,” “lesbian” and even “sexual orientation” are each defined by reference to “homosexual” which is defined as sexual desire or intercourse between individuals of the same sex. Merriam Webster defines “Homosexual” as “of, relating to, or characterized by a tendency to direct sexual desire toward individuals of one’s own sex” or “of, relating to, or involving sexual intercourse between individuals of the same-sex.” Homosexual Definition, MERRIAMWEBSTER.COM, http://www.merriam-webster.com/dictionary/homosexual (last visited July 27, 2012). “Gay” is defined as “homosexual; especially: a homosexual male.” Gay Definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/dictionary/gay (last visited July 27, 2012). “Lesbian” is defined as “a woman who is homosexual.” Lesbian Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/lesbian (last visited July 27, 2012). Lastly, “sexual orientation” is defined as “the inclination with respect to heterosexual, homosexual and bisexual behavior.” Sexual orientation definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/medical/sexual%20orientation (last visited July 27, 2012). Although scholars may quibble over subtle differences in terminology, it is clear that none of these terms are neither amorphous nor incapable of describing a particular class. Indeed, the colloquial understanding of each of these terms readily describe a class that is defined by same-sex attraction and sexual behavior. BLAG’s contention that “Plaintiffs’ claims run headlong into the differing definitions of the terms” risks elevating abstract logic over experience. Here
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experience palpably demonstrates that each of these terms is capable of describing a particular class with precision and clarity.
BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep., 25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence
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that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of selfidentified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men
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and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in
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their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge
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same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also
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consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit
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immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev'd, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S. 1001 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2290 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such
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circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct … [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to … the development of human personality…” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so
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fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouini v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual . . . being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person's fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinksi, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
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[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly,
immutability should “describe those traits that are so central to a person's
identity that it would be abhorrent for government to penalize a person for
refusing to change them.” Id.
This Court finds the reasoning of the Ninth Circuit to be persuasive in view
of the fact that the Supreme Court has already demarcated sexual intimacy, both
heterosexual and homosexual, as an integral part of human freedom and the
development of human personality, thereby suggesting that sexual orientation
should be considered a defining characteristic fundamental to one’s identity
much like race, ethnicity or gender. Where there is overwhelming evidence that a
characteristic is central and fundamental to an individual’s identity, the
characteristic should be considered immutable and an individual should not be
required to abandon it. To hold otherwise would penalize individuals for being
unable or unwilling to change a fundamental aspect of their identity; an aspect
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which has been recognized as an integral part of human freedom. On this basis

as well, this factor weighs in favor of the application of heightened scrutiny.

iv.

Minority Status and Political Powerlessness

The final factor courts consider is whether the subject group is “a minority

or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal

quotation marks omitted). “This factor examines relative political power and

seeks the answer the question whether the ‘discrimination is unlikely to be soon

rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting

Cleburne, 473 U.S. at 440).

Courts place less weight with respect to this fourth and final factor

considering that the Supreme Court has recognized gender as a quasi-suspect

class despite the fact that the group was neither a minority nor truly politically

powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging

that women “do not constitute a small and powerless minority”); see also

Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the

[political powerlessness] test pales in comparison to the question[s] of whether

... the characteristic bears any relationship to the individual[']s ability to function

in society, whether the group has suffered a history of discrimination based on

misconceptions of that factor and whether that factor is the product of the

group's own volition.”); In re Marriage cases, 43 Cal. 4th at 842-43 (concluding

that political powerlessness cannot be required for heightened scrutiny to apply

because other groups like women and African Americans continue to be

accorded heightened protection although they are no longer lacking in political

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power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group's political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group's political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial factfinding.” 289 Conn. at 171. Despite this inherent difficulty, the Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of Non-Adjudicative Facts, ¶71].7 Most recently months after
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is
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the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/the-fix/post/north-carolina-passes-gaymarriage-ban-amendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of political power
appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis. 8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis. 
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and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly
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recognized the gains women had made politically when they recognized gender
as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court
ultimately declined to view this factor in a rigid fashion instead allowing women
to satisfy this factor despite the fact that women were not entirely politically
powerless. The Supreme Court concluded that while “[i]t is true, of course, that
the position of women in America has improved markedly in recent decades”
despite such improvement “women 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.” Id. at 685-86. Consequently,
the Supreme Court held that “when viewed in the abstract, women do not
constitute a small and powerless minority” however “in part because of past
discrimination, women are vastly underrepresented in the Nation’s
decisionmaking councils.” Id. at 686 n.17.
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The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 437 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not
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establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not
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consider every plausible argument to be a ‘reasonable’ one” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration's reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” [Dkt. #82, p. 1314]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5%
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of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/news/article/New-state-law-requires-LGBT-history-intextbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t
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say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/news/nation/story/2012-02-16/tennessee-billhomosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn.gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis.cbslocal.com/2012/04/23/controversial-dont-say-gay-bill-debated-inmo-house/; see also proposed House Bill No.2051, available at http://www.house.mo.gov/billtracking/bills121/biltxt/intro/HB2051I.htm. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy,
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President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socio-economic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
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BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and
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to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.
In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be … rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding“[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection… In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendment-the imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once
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so identified publicly, members of this group are particularly powerless to pursue
their rights openly in the political arena.” Rowland v. Mad River Local School
Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985). Although not
necessary to trigger heightened scrutiny, this Court finds that gay men and
lesbians lack meaningful political power sufficient to satisfy this factor of the
suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals
display all the traditional indicia of suspectness and therefore statutory
classifications based on sexual orientation are entitled to a heightened form of
judicial scrutiny.9 However, the Court need not apply a form of heightened
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasi-suspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). As the
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scrutiny in the instant case to conclude that DOMA violates the promise of the
equal protection as it is clear that DOMA fails to pass constitutional muster under
even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial
recognition as a suspect classification. However, the Supreme Court has
declined to afford them such status, opting instead to apply rational basis review
rather than definitively address whether sexual orientation constitutes a suspect
or quasi-suspect class. Accordingly, the Court will apply rational basis review.
Even under this, the least intrusive level of review, Section 3 of DOMA fails to
withstand constitutional scrutiny.
Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinksi, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 560. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts. 10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.
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As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical , it may be, and unscientific.” Metropolis Theatre Co.
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v. Chicago, 228 U.S. 61, 69-70 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress's generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification, where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S.
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at 320. The House Committee Report identifies “four governmental interests
advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the Intervenor-Defendant, has raised several
additional objectives which could also have motivated Congress to include a
classification based on sexual orientation in Section 3 of DOMA. Specifically,
BLAG asserts that “Congress rationally could have been, and in fact was,
concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc; 3) To maintain consistency and uniformity with regard
to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing,
begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the
articulated legislative objectives, but also any “reasonable conceivable set of
facts that could provide a rational basis for the classification,” the Court will
consider all of the aforementioned objectives to determine whether the Plaintiffs
have sustained their burden to negate “every conceivable basis which might
support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
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1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside
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of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In
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particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and childrearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging
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extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits upon such marriages would further erode the societal conception of marriage as the appropriate child-rearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged
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to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of later-emerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide
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for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit same-sex couples to adopt children and
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afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and
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Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents samesex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual
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couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).
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be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately
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burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon opposite-sex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition . . . by an individual that may be a debtor . . . and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow
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enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude same sex couples . . . from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage same-sex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope
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belies any rational relationship to the purported objective of promoting dualgendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.
3. Defending Traditional Notions of Morality The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate . . . And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id. Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed
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it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponent’s Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at articles.courant.com/2003-03-25/features/0303250984_1_same-sexmarriage-same-sex-ceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ . . . ] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral disapproval of [a] group,
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like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.
BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public
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fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.
Addressing first the assertion that precluding the extension of federal marital benefits to same-sex married couples will preserve government resources, the Court finds that such assertion has no basis in reality in light of the Congressional Budget Office’s June 21, 2004 Report. The Report concluded that the net effect of federal recognition and conferral of marital benefits upon same-sex marriages would be to “improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years.” CONGRESSIONAL BUDGET OFFICE, THE POTENTIAL BUDGETARY IMPACT OF RECOGNIZING SAME-SEX MARRIAGES, at 1 (June 21, 2004), available at https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf. Neither the House Report nor BLAG’s pleadings present any evidence to the contrary. This conclusion by the Congressional Budget Office, in the absence of any conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational
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basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in
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protecting state sovereignty and democratic self-governance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to
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Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of samesex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded same-sex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore,
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contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire.12 This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire. BLAG’s concern for democratic self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
12 See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.
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6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to same-sex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples.
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Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most
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powerful. Such a rationale would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the
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federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
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IV.

Conclusion

In sum, having considered the purported rational bases proffered by both

BLAG and Congress and concluded that such objectives bear no rational

relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no

conceivable rational basis exists for the provision. The provision therefore

violates the equal protection principles incorporated in the Fifth Amendment to

the United States Constitution.

For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is

GRANTED, and Intervenor-Defendant BLAG’s Motion to Dismiss is DENIED.

_______/s/ Hon. United

IT IS SO ORDERED.
___________ Vanessa L. Bryant
States District Judge

Dated at Hartford, Connecticut: July 31, 2012

104

 </s> Case 3:10-cv-01750-VLB Document 122 Filed 09/26/12 Page 1 of 4

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF CONNECTICUT

______________________________________

)

JOANNE PEDERSEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 3:10-cv-01750 (VLB)

)

OFFICE OF PERSONNEL

)

MANAGEMENT, et al.,

)

)

Defendants,

)

)

BIPARTISAN LEGAL ADVISORY GROUP )

OF THE UNITED STATES HOUSE OF

)

REPRESENTATIVES,

)

)

Intervenor-

)

Defendant.

)

_____________________________________ )

NOTICE OF APPEAL OF INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) hereby appeals to the U.S. Court of Appeals for the Second Circuit the District Court’s Order (July 31, 2012) (ECF No. 116), and Judgment (August 2, 2012) (ECF No. 118), both insofar as they grant Plaintiffs’ Motion for Summary Judgment (July 15, 2011) (ECF No. 60) and deny the [House]’s Motion to Dismiss (Aug. 15, 2011) (ECF No. 80). Copies of the Order and Judgment are attached as Exhibits A and B, respectively.
The statutory basis for this appeal is 28 U.S.C. § 1291. The House is exempt from the filing fee requirement for this appeal. See 28 U.S.C. § 1913; Judicial Conference of the United States, Court of Appeals Miscellaneous Fee

Case 3:10-cv-01750-VLB Document 122 Filed 09/26/12 Page 2 of 4
Schedule, available at
http://www.uscourts.gov/FormsAndFees/Fees/CourtOfAppealsMiscellaneousFeeS
chedule.aspx.
Respectfully submitted,
Paul D. Clement /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley
BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806
Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives1
OF COUNSEL:
Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel
OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360
September 26, 2012
1 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, 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 Democratic Whip decline to support the filing of this Notice of Appeal.
2

Case 3:10-cv-01750-VLB Document 122 Filed 09/26/12 Page 3 of 4
CERTIFICATE OF SERVICE
I certify that on September 26, 2012, I served one copy of the foregoing
Notice of Appeal of Intervenor-Defendant the Bipartisan Legal Advisory Group of
the U.S. House of Representatives by CM/ECF and by electronic mail (.pdf format)
on the following:
Gary D. Buseck Janson Wu Mary L. Bonauto Vickie L. Henry Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 gbuseck@glad.org jwu@glad.org mbonauto@glad.org vhenry@glad.org
Karen L. Dowd Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 kdowd@hortonshieldsknox.com kbartschi@hsklawfirm.com
David J. Nagle Richard L. Jones Sullivan & Worchester LLP One Post Office Square Boston, MA 02109 dnagle@sandw.com rjones@sandw.com

Case 3:10-cv-01750-VLB Document 122 Filed 09/26/12 Page 4 of 4
David Christopher Nelson U.S. Attorney’s Office – HTFD 450 Main St., Rm. 328 Hartford, CT 06103 david.c.nelson@usdoj.gov
Judson O. Littleton U.S. Department of Justice, Civil Division 20 Massachusetts Ave., N.W., Seventh Floor Washington, DC 20530 judson.o.littleton@usdoj.gov
I further certify that I served the foregoing by electronic mail (.pdf format) on the following:
Paul M. Smith Luke C. Platzer Daniel I. Weiner Matthew J. Dunne Jenner & Block 1099 New York Ave., N.W., Suite 900 Washington, DC 20001-4412 psmith@jenner.com lplatzer@jenner.com dweiner@jenner.com mdunne@jenner.com
/s/ Kerry W. Kircher Kerry W. Kircher

Case 3:10-cv-01750-VLB Document 122-1 Filed 09/26/12 Page 1 of 105
Exhibit A

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee12oof f110045

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JOANNE PEDERSEN, et al.,

:

Plaintiffs,

:

:

v.

:

:

OFFICE OF PERSONNEL

:

MANAGEMENT, et al.,

:

Defendants,

:

:

v.

:

:

BIPARTISAN LEGAL ADVISORY GROUP :

OF THE UNITED STATES HOUSE OF

:

REPRESENTATIVES ,

:

Intervenor-Defendant.

:

CIVIL ACTION NO. 3:10-cv-1750 (VLB)
July 31, 2012

MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO
DISMISS [Dkt. #80] Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the
1

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plethora of federal laws which rely on DOMA’s definitions. Currently pending

before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the

Plaintiffs asserting that they are entitled to judgment as a matter of law, along

with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the

Bipartisan Legal Advisor Group of the United States House of Representatives,

(“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both

motions seek ultimate resolution of this matter, the Court will consider and

review the motions simultaneously, addressing the fundamental question of

whether or not Section 3 of DOMA can withstand the applicable level of

constitutional scrutiny.

I.

Factual Background

A. History of DOMA

DOMA was enacted on September 21, 1996 and signed into law by

President Clinton after passing both houses of Congress with large majorities.

Section 3 of DOMA, the provision which is the subject of the Plaintiffs’

constitutional challenge, codifies the following definition of the terms “marriage”

and “spouse” as a matter 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.

1 U.S.C. §7. As expressly stated in the House Judiciary Committee Report on

DOMA, DOMA was drafted as “a response to a very particular development in the

2

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State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 2-4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited statesanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and [. . . ] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newly-coined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage,
3

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ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new.items/d04353r.pdf. 2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)
4

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illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Foundation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913).
5

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Under these regulations, those eligible for coverage may elect to enroll for
individual coverage, or for both individual and family coverage. Id. (citing 5
U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to
“the spouse of an employee or annuitant [or] an unmarried dependent child under
22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the
demands of the workplace with the needs of families” by “entitl[ing] employees to
take reasonable leave for medical reasons, for the birth or adoption of a child,
and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible
employees to take up to twelve work-weeks of unpaid leave during any twelve-
month period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the
Department of Labor to implement the FMLA define the term “spouse” for
purposes of the FMLA as “a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.” 29 U.S.C.
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).
6

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§2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(I), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that defined-benefit pension plans are subject to both
7

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ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire 1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 143-44 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-
8

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sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 2715 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
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2. Same-Sex Marriage in Vermont On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission, http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into
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law on May 31, 2007. 2007–2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes SameSex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.html.
c. Plaintiffs’ Factual Backgrounds The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3]. Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by same-sex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.
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insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶6-7. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
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Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
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Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means
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only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household. Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for
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and purchase health care coverage on the private insurance market. Id. at ¶¶66-

67. Savoy applied to have his husband added to his existing health plan under

the FHEB Program and his application was denied. Id. at ¶¶69-70.

II.

Standards of Review

A. Motion to Dismiss

“‘To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.’”

Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a]

pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the

elements of a cause of action will not do.’ Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (citations and internal quotations omitted). “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short

of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (internal citations omitted).

In considering a motion to dismiss for failure to state a claim, the Court

should follow a “two-pronged approach” to evaluate the sufficiency of the

complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can

choose to begin by identifying pleadings that, because they are no more than

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conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment Summary judgment should be granted “i f the movant show s that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law .’” Fed.R.Civ.P. 56( a). The movi ng party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and cred it all factual inferences that could be drawn in favor of the part y against whom summary judgment is s ought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co . v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L .Ed.2d 538 (1986)). “If there is an y evidence in the record that could re asonably support a ju ry's verdict for the nonmoving party , summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Ci r.2006) (internal quotation marks and citation omitted).
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“A party opposing summary judgment cannot defeat the motion by relying on

the allegations in his pleading, or on conclusor

y statements, or on mere

assertions that affidavits supporting the motion are not credible. At the summary

judgment stage of the procee ding, Plaintiffs are requi red to present admissible

evidence in support of their a llegations; allegations alone, w ithout evidence to

back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,

2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks an d

citations omitted); Martinez v. State of Connecticut , No. 3:09cv1341 (VLB), 2011

WL 4396704 at *6 (D. Conn. Sept. 21, 2011) . Where there is no evidence up on

which a jur y could p roperly proceed to f ind a verd ict for the part y producing it

and upon w hom the onus of proof is imposed, such as w here the evidence

offered consists of conclusor y assertions without further s upport in the record,

summary judgment may lie. Fincher v. Depository Trust and Clearance Co. , 604

F.3d 712 (2d Cir. 2010).

III.

Discussion

A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns

BLAG argues that those Plaintiffs who claim that DOMA prohibited them

from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj.

to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the

joint filing of married persons, 26 U.S.C. §6013, does not on its own extend to

same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a

“husband and wife may make a single return jointly of income taxes…” 26 U.S.C.

§6013(a). BLAG argues that these Plaintiffs lack standing “because the joint

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filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases' and ‘Controversies' and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’—injury-infact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631–32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise … [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26
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U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s genderneutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the
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reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial
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of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
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The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in the record,’… are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state
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law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection
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of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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 quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)).
The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or
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persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual
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orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99 (1982). Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships”. See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671
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F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J. dissenting) (acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deepseated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to
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equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification BLAG contends that sexual orientation has never been viewed as a suspect
or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasisuspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression
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before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class … Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. 640 n.1; Lawrence v. Texas, 529 U.S. 558, 529 n.1 (2003). In view
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of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of California noted “[w]hen the premise for a case's holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983-984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can … be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast
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majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); Ben-Shalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military's mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting
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Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Rostker v. Goldberg,
453 U.S. 57, 70 (1981) (acknowledging that “judicial deference to such
congressional exercise of authority is at its apogee when legislative action under
the congressional authority to raise and support armies and make rules and
regulations for their governance is challenged”). Considering the inimitable
circumstances attending military regulations and the uniquely deferential
approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on
Bowers, which was rejected in Lawrence, and relied on analyses in the deferential
military context rather than the more discretionary civilian context, the
precedential import of such authority is unpersuasive, particularly given the fact
that the Second Circuit has not had an opportunity to consider the matter.
The Court is mindful of the Supreme Court’s admonition that “‘respect for
the separation of powers’ should make courts reluctant to establish new suspect
classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne,
473 U.S. at 441). The Supreme Court has to date only recognized a handful of
5 The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.
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suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what
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constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors At the outset, this Court is guided by Justice Thurgood Marshall’s
approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ . . . must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the
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stereotype on which they are based, a history of unequal treatment requires

sensitivity to the prospect that its vestiges endure. In separating those groups

that are discrete and insular from those that are not, as in many important legal

distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations

omitted). Thus the Court’s analysis will be cognizant of social, cultural and

political perspectives grounded in experience as opposed to abstract logic and

an awareness that there is likely no single talisman that signals which groups are

the subject of classifications offensive to the principle of equal protection.

i.

History of Discrimination

The first factor courts consider is whether the class has suffered a history

of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries

there have been powerful voices to condemn homosexual conduct as immoral’”

and that “lesbians and gay men have suffered a long history of discrimination

and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG

responds that it “does not dispute that homosexuals have been subject to

discrimination” however BLAG questions the length of this history. This

acknowledgement is emblematic of the incidents of discrimination, including

annulation, negation, ostracism and isolation of the group which is the object of

discrimination resulting in the broader society’s lack of knowledge and

understanding of that group.

BLAG argues that the history of discrimination against homosexuals is

relatively short-lived and ostensibly the product of the twentieth century which

counsels against recognizing sexual orientation as a suspect or quasi-suspect

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class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].
Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey.html (“It’s important to note that there’s been a long history in the regulation of sexual acts
6 BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert's opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).
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of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the
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homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity
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emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment
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because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 11-86, at 10 (2009)).
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The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination…”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinksi, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of
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homosexuality is increasing, gay men and lesbians have endured a long history

of discrimination, both official and private.” Able v. United States, 968 F.Supp.

850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The

Able court noted that discrimination against homosexuality began in the second

half of the twelfth century and that the “‘earliest and most drastic legislation

against gay people enacted by any government of the High Middle Ages’ were

laws passed by the European conquerors of Jerusalem imposing death by

burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social

Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that

during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies,

and other groups, using the pink triangle as the symbol to designate

homosexuality.” Id. at 852.

In sum, the evidence in the record detailing the long history of anti-gay

discrimination which evolved from conduct-based proscriptions to status or

identity-based proscriptions perpetrated by federal, state and local governments

as well as private parties amply demonstrates that homosexuals have suffered a

long history of invidious discrimination. Moreover this conclusion is consistent

with the majority of cases which have meaningfully considered the question and

likewise held that homosexuals as a class have experienced a long history of

discrimination.

ii.

Ability to Contribute to Society

Plaintiffs argue “there can be no credible dispute about whether sexual

orientation bears a relation to one’s ‘ability to perform or contribute to society.’”

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[Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.
Certainly the recent repeal of “Don’t Ask Don’t Tell” and the military’s contemporaneous recognition of the long history of valiant honorable service of homosexual servicemen and women attests to the fact that homosexuals have made the ultimate contribution to society. Defense Secretary Leon Panetta recently highlighted these contributions and “thank[ed] gay and lesbian service members, LCGT civilians, and their families for their dedicated service to our country.” Leon Panetta, Secretary Penetta Video Message for Lesbian, Gay, Bisexual, Transgender Pride Month from the Pentagon, U.S. Dep’t. of Def. (June 15, 2012), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5062. Secretary Panetta stated that “[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you
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faithfully served your country with professionalism and courage. And just like your fellow service members, you put your country before yourself…The pursuit of equality is fundamental to the American story. The successful repeal of ‘Don’t Ask, Don’t Tell’ proved to the Nation that just like the country we defend, we share different backgrounds, different values, and different beliefs -- but together, we are the greatest military force in the world.” Id.
In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinksi, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 688, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation … bears no relation whatsoever to an individual’s ability to perform, or to participate
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in, or contribute to, society … If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable … that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court
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has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or physical disability … is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this
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factor weighs strongly in favor of recognizing sexual orientation as a quasi-

suspect or suspect class.

iii.

Defining or Immutable Characteristics

Another relevant consideration is whether the characteristic that defines

the class as a discrete group is immutable or otherwise not within the member’s

control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638

(1986)). It does not appear that this factor is necessary to trigger heightened

scrutiny in view of the Supreme Court’s recognition of suspect class to groups

with ostensibly mutable characteristics. The Supreme Court has held that

resident aliens constitute a suspect class despite the ability to opt out of the

class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977). Additionally,

one’s status as illegitimate may be subject to change and is therefore not a

strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431 (1998)

(acknowledging that illegitimate child may be legitimated by father). Further as

the Kerrigan court astutely observed “not infrequently, the United States

Supreme Court has omitted any reference to immutability in discussing the

identifying or distinguishing characteristic of a particular class.” Kerrigan, 289

Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 20, 25 (1973); Graham v. Richardson, 403

U.S. 365, 371-72 (1971)). Consequently, immutability is not an essential

requirement but merely one indication that the classification reflects “deep-

seated prejudice rather than legislative rationality in pursuit of some legitimate

objective.” Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20;

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Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peer-reviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be successful and involve some risk of harm.” Id. at ¶26 (citing APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force, available at http://www.apa.org/pi/lgbt/publications/therapeutic-response.pdf). The American Psychiatric Association, American Psychological Association, American
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Counseling Association, National Association of Social Workers and the American Academy of Pediatrics all “have adopted policy statements cautioning professionals and the public about these treatments.” Id. at ¶27. See also Perry v. Schwarzenegger, 704 F.Supp.2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”). Lastly, studies have also indicated that the majority of gay men and lesbians report that they experienced no choice or little choice about their sexual orientation. [Dkt. # 73, Peplau Aff., ¶25] (citing 2010 national survey conducted with representative sample of more than 650 self-identified lesbian, gay and bisexual adults, 88% of gay men reported that they had “no choice,” and 7% reported “very little choice” while 68% of lesbians responded they had “no choice at all” and 15% reported having “very little choice.”).
Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied by Plaintiffs’ own experts…These differing definitions show that these terms are amorphous and do not adequately describe a particular class.” [Dkt. #82, p. 2223]. Although there might be subtle semantic distinctions between each of these terms from an academic perspective, each term is principally defined as pertaining to same-sex attraction or sexual behavior and could not be understood without reference to this elemental concept. In fact, the colloquial definitions of
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“gay,” “lesbian” and even “sexual orientation” are each defined by reference to “homosexual” which is defined as sexual desire or intercourse between individuals of the same sex. Merriam Webster defines “Homosexual” as “of, relating to, or characterized by a tendency to direct sexual desire toward individuals of one’s own sex” or “of, relating to, or involving sexual intercourse between individuals of the same-sex.” Homosexual Definition, MERRIAMWEBSTER.COM, http://www.merriam-webster.com/dictionary/homosexual (last visited July 27, 2012). “Gay” is defined as “homosexual; especially: a homosexual male.” Gay Definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/dictionary/gay (last visited July 27, 2012). “Lesbian” is defined as “a woman who is homosexual.” Lesbian Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/lesbian (last visited July 27, 2012). Lastly, “sexual orientation” is defined as “the inclination with respect to heterosexual, homosexual and bisexual behavior.” Sexual orientation definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/medical/sexual%20orientation (last visited July 27, 2012). Although scholars may quibble over subtle differences in terminology, it is clear that none of these terms are neither amorphous nor incapable of describing a particular class. Indeed, the colloquial understanding of each of these terms readily describe a class that is defined by same-sex attraction and sexual behavior. BLAG’s contention that “Plaintiffs’ claims run headlong into the differing definitions of the terms” risks elevating abstract logic over experience. Here
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experience palpably demonstrates that each of these terms is capable of describing a particular class with precision and clarity.
BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep., 25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence
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that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of selfidentified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men
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and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in
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their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge
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same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also
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consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit
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immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev'd, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S. 1001 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2290 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such
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circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct … [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to … the development of human personality…” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so
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fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouini v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual . . . being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person's fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinksi, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
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[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly,
immutability should “describe those traits that are so central to a person's
identity that it would be abhorrent for government to penalize a person for
refusing to change them.” Id.
This Court finds the reasoning of the Ninth Circuit to be persuasive in view
of the fact that the Supreme Court has already demarcated sexual intimacy, both
heterosexual and homosexual, as an integral part of human freedom and the
development of human personality, thereby suggesting that sexual orientation
should be considered a defining characteristic fundamental to one’s identity
much like race, ethnicity or gender. Where there is overwhelming evidence that a
characteristic is central and fundamental to an individual’s identity, the
characteristic should be considered immutable and an individual should not be
required to abandon it. To hold otherwise would penalize individuals for being
unable or unwilling to change a fundamental aspect of their identity; an aspect
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which has been recognized as an integral part of human freedom. On this basis

as well, this factor weighs in favor of the application of heightened scrutiny.

iv.

Minority Status and Political Powerlessness

The final factor courts consider is whether the subject group is “a minority

or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal

quotation marks omitted). “This factor examines relative political power and

seeks the answer the question whether the ‘discrimination is unlikely to be soon

rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting

Cleburne, 473 U.S. at 440).

Courts place less weight with respect to this fourth and final factor

considering that the Supreme Court has recognized gender as a quasi-suspect

class despite the fact that the group was neither a minority nor truly politically

powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging

that women “do not constitute a small and powerless minority”); see also

Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the

[political powerlessness] test pales in comparison to the question[s] of whether

... the characteristic bears any relationship to the individual[']s ability to function

in society, whether the group has suffered a history of discrimination based on

misconceptions of that factor and whether that factor is the product of the

group's own volition.”); In re Marriage cases, 43 Cal. 4th at 842-43 (concluding

that political powerlessness cannot be required for heightened scrutiny to apply

because other groups like women and African Americans continue to be

accorded heightened protection although they are no longer lacking in political

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power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group's political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group's political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial factfinding.” 289 Conn. at 171. Despite this inherent difficulty, the Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of Non-Adjudicative Facts, ¶71].7 Most recently months after
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is
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the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/the-fix/post/north-carolina-passes-gaymarriage-ban-amendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of political power
appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis. 8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.
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and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly
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recognized the gains women had made politically when they recognized gender
as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court
ultimately declined to view this factor in a rigid fashion instead allowing women
to satisfy this factor despite the fact that women were not entirely politically
powerless. The Supreme Court concluded that while “[i]t is true, of course, that
the position of women in America has improved markedly in recent decades”
despite such improvement “women 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.” Id. at 685-86. Consequently,
the Supreme Court held that “when viewed in the abstract, women do not
constitute a small and powerless minority” however “in part because of past
discrimination, women are vastly underrepresented in the Nation’s
decisionmaking councils.” Id. at 686 n.17.
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The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 437 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not
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establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not
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consider every plausible argument to be a ‘reasonable’ one” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration's reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” [Dkt. #82, p. 1314]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5%
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of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/news/article/New-state-law-requires-LGBT-history-intextbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t
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say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/news/nation/story/2012-02-16/tennessee-billhomosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn.gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis.cbslocal.com/2012/04/23/controversial-dont-say-gay-bill-debated-inmo-house/; see also proposed House Bill No.2051, available at http://www.house.mo.gov/billtracking/bills121/biltxt/intro/HB2051I.htm. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy,
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President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socio-economic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
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BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and
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to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.
In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be … rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding“[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection… In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendment-the imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once
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so identified publicly, members of this group are particularly powerless to pursue
their rights openly in the political arena.” Rowland v. Mad River Local School
Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985). Although not
necessary to trigger heightened scrutiny, this Court finds that gay men and
lesbians lack meaningful political power sufficient to satisfy this factor of the
suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals
display all the traditional indicia of suspectness and therefore statutory
classifications based on sexual orientation are entitled to a heightened form of
judicial scrutiny.9 However, the Court need not apply a form of heightened
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasi-suspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). As the
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scrutiny in the instant case to conclude that DOMA violates the promise of the
equal protection as it is clear that DOMA fails to pass constitutional muster under
even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial
recognition as a suspect classification. However, the Supreme Court has
declined to afford them such status, opting instead to apply rational basis review
rather than definitively address whether sexual orientation constitutes a suspect
or quasi-suspect class. Accordingly, the Court will apply rational basis review.
Even under this, the least intrusive level of review, Section 3 of DOMA fails to
withstand constitutional scrutiny.
Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinksi, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 560. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts. 10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.
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As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical , it may be, and unscientific.” Metropolis Theatre Co.
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v. Chicago, 228 U.S. 61, 69-70 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress's generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification, where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S.
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at 320. The House Committee Report identifies “four governmental interests
advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the Intervenor-Defendant, has raised several
additional objectives which could also have motivated Congress to include a
classification based on sexual orientation in Section 3 of DOMA. Specifically,
BLAG asserts that “Congress rationally could have been, and in fact was,
concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc; 3) To maintain consistency and uniformity with regard
to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing,
begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the
articulated legislative objectives, but also any “reasonable conceivable set of
facts that could provide a rational basis for the classification,” the Court will
consider all of the aforementioned objectives to determine whether the Plaintiffs
have sustained their burden to negate “every conceivable basis which might
support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
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1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside
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of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In
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particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and childrearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging
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extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits upon such marriages would further erode the societal conception of marriage as the appropriate child-rearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged
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to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of later-emerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide
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for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit same-sex couples to adopt children and
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afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and
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Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents samesex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual
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couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).
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be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately
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burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon opposite-sex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition . . . by an individual that may be a debtor . . . and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow
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enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude same sex couples . . . from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage same-sex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope
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belies any rational relationship to the purported objective of promoting dualgendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.
3. Defending Traditional Notions of Morality The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate . . . And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id. Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed
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it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponent’s Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at articles.courant.com/2003-03-25/features/0303250984_1_same-sexmarriage-same-sex-ceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ . . . ] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral disapproval of [a] group,
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like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.
BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public
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fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.
Addressing first the assertion that precluding the extension of federal marital benefits to same-sex married couples will preserve government resources, the Court finds that such assertion has no basis in reality in light of the Congressional Budget Office’s June 21, 2004 Report. The Report concluded that the net effect of federal recognition and conferral of marital benefits upon same-sex marriages would be to “improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years.” CONGRESSIONAL BUDGET OFFICE, THE POTENTIAL BUDGETARY IMPACT OF RECOGNIZING SAME-SEX MARRIAGES, at 1 (June 21, 2004), available at https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf. Neither the House Report nor BLAG’s pleadings present any evidence to the contrary. This conclusion by the Congressional Budget Office, in the absence of any conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational
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basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in
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protecting state sovereignty and democratic self-governance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to
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Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of samesex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded same-sex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore,
98

CaCsaese3:31:01-0c-vc-v0-10715705-0V-LVBLB DoDcoucmumenetn1t 2121-61 FFiilleedd 0079//3216//1122 PPaaggee 91900ofo1f 01405
contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire.12 This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire. BLAG’s concern for democratic self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
12 See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.
99

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee110001oof f110045
6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to same-sex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples.
100

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee110012oof f110045
Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most
101

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee110023oof f110045
powerful. Such a rationale would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the
102

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee110034oof f110045
federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
103

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112126-1 FFileiledd0079/3/216/1/122 PPaaggee110045oof f110045

IV.

Conclusion

In sum, having considered the purported rational bases proffered by both

BLAG and Congress and concluded that such objectives bear no rational

relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no

conceivable rational basis exists for the provision. The provision therefore

violates the equal protection principles incorporated in the Fifth Amendment to

the United States Constitution.

For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is

GRANTED, and Intervenor-Defendant BLAG’s Motion to Dismiss is DENIED.

_______/s/ Hon. United

IT IS SO ORDERED.
___________ Vanessa L. Bryant
States District Judge

Dated at Hartford, Connecticut: July 31, 2012

104

Case 3:10-cv-01750-VLB Document 122-2 Filed 09/26/12 Page 1 of 3
Exhibit B

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112128-2 FFileiledd0089/0/226/1/122 PPaaggee12oof f23

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, DAMON SAVOY & JOHN WEISS

NO. 3:10-CV-1750(VLB)

V.

OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his office capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as the United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA

V.

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES

JUDGMENT This action having come before the Court on plaintiffs’ motion for summary judgment and defendants’ motions to dism iss, before the Honorable Vanessa L.

CCaassee33:1:100-c-cvv-0-011775500-V-VLLBB DDooccuummeennt t112128-2 FFileiledd0089/0/226/1/122 PPaaggee23oof f23

Bryant, United States District Judge; and

The Court having considered the full record of the case including applicable

principles of law , and having issued an order granting the plaintiffs’ motion for

summary judgment and denying defendants’ motions to dismiss; it is hereby

ORDERED, ADJUDGED and DECREED th at judgment be and hereby is

entered in favor of plaintiffs.

Dated at Hartford, Connecticut, this 2nd day of August, 2012.

ROBIN D. TABORA, Clerk

Loraine

By

/s/LL

LaLone

Deputy Clerk

EOD: 8/2/12

 </s> Case: 12-3273 Document: 9 Page: 1 08/21/2012 698375 128

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION lNFOlLl\'lATlON STATEMENT

Docket Number(s): _---"'"'--='->.ll...L...LMotion for: J=;~~~9J:i§~?'!!.

~~""'_J._=~""_'_'="__

_

_

Set forth below precise, complete statement of relief sought: Plaintiffs-Appellees seek an expedited schedule for

Pedersen v. Office of Personnel Management

briefing and oral argument of this appeal:
schedule is in keeping with that of Windsor v.

United States.
MOVING PARTY: Plaintiffs [ZjPlaintiff [JAppeliant/petitioner

BiPartisan Legal Advisory

[J-D-ef-e-nd-a-nt--------

OPPOSING

PARTY:

Group of the U. S. Representatives

House

of

[Zj Appellee/Respondent

ren MOVING ATTORNEY: __Ka__ L. _:..-:::...:.--=-.:::..:..:c=--

_ OPPOSlNGATTORNEY: ..P.:.a-.u::.l:.::D:.:....C-::.l..e::m.....e.:n::.t.:..::..:...:...:.:::.:...:...:..--------

[name of attorney, with finn, address, phone number and e-mail]

Horton, Shields & Knox, P.C.

Bancroft PLLC

90 Gillett Street

1919 M Street Northwest, SUIte 470

Hartford CT 06105

Washin~ton DC 20036

(860)522-8338 kbartschl@hortonshieldsknox.com

Court-Judge/Agency appealed from: United States District Court for District of Connecticut (Bryant, J.)

Please check appropriate boxes:

Has mov~otified opposing counsel (required by Local Rule 27.1):

L{jYes [ J No (ex[llatrl):

_

Opposin~unsel's position on motion: UUnopposed [Zppposed [Joon't Know
Does opposing counsel intend to file a response: [ZjYes[JNo [JDon't Know

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL: Has request for relief been made below? Has this relief been previously sought in this Court?

BYes GNO Yes No

Requested return date and explanation of emergency:

_

Is oral argument on motion requested?

[JYes [ZjNo (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

[JYes [ZjNo If yes, enter __....

_

Signature of Moving Attorney:
/sl Ka ren L. Dowd

~Date: 8/212012

Service by: [Zj CMlECF [Zj Other [Attach proof of service]

IT IS HEREBY ORDERED THAT

ORDER
GRANTED DENIED.
FOR THE COURT: CATHERINE O'HAGAN

Date: - - - - - - - - - - - - - - - - - - - -

Form T-I080

Clerk of Court

Case: 12-3273 Document: 9 Page: 113 08/21/2012 698375 128

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Plaintitls-Appellees, v. OFFICE OF PERSONNEL MANAGEMENT, et aI., Defendants-Appellants, THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant

No. 12-3273

J are six same-sex couples and a widower from the states

Case: 12-3273 Document: 9 Page: 114 08/21/2012 698375 128

state's law after one or more decades of commitment to one another. They now

assume the responsibilities of married persons under state law. However, by

operation of DOMA, they have been denied federal legal protections available to

other married families in the areas of federal Family and lV1edicai Leave Act

benefits, federal income taxation, social security benefits, workplace benefits for

federal employees and retirees, and state and private pension plan protections.

As discussed infra, there are multiple reasons to expedite this appeal. First,

the plaintiffs face ongoing harms from DOMA's dejure discrimination against

them as married same-sex couples by negating their marital status for all federal

purposes. Second, expediting this appeal to allow it to be assigned to the same

panel ofjudges hearing the Windsor case would advance judicial economy while

allowing both cases to be resolved on the merits. The Intervener-Defendant

Bipartisan Legal Advisory Group ("BLAG") itself agrees that the two cases

cornmon core

of

s

. Third, the

District Court's thorough attention to the standard of review, including extensive

record citations to the issue of whether sexual orientation classifications merit

as it COll1SIGelrS

revIew

DOMA.

Order

Case: 12-3273 Document: 9 Page: 115 08/21/2012 698375 128

A.).1 Finally, an expedited schedule will not unduly burden BLAG, which has

intervened to defend DOMA's constitutionality in all cases since early 2011.

Accordingly, we respectfully request that this Court grant this Motion and

order an expedited briefing schedule whereby Intervener-Defendant's Brief and

the Defendants-Appellants' Brief is due no later than September 12, 2012,

Plaintiffs-Appellees Brief is due no later than September 26, 2012, and the

Intervener-Defendant's Reply Brief and the Defendants-Appellants' Reply Brief is

due no later than October 3,2012. This schedule would ensure that the principal

party briefs are submitted by the time of argument in Windsor.

In order to accommodate the two appeals, and given that oral argument is

already scheduled for September 27,2012 in Windsor, Plaintiffs-Appellees would

waive oral argument if doing so would facilitate expedition and coordination with

the Court's consideration of Windsor.

We have been advised that Plaintiff-Appellee Edith S. Windsor does not

object to this proposed schedule as long as there are no changes to the expedited

briefing schedule in Windsor, the September 27 oral argument date for that appeal,

and

s expedited

of

BLAG does not consent to motion and intends to a response to

3

Case: 12-3273 Document: 9 Page: 116 08/21/2012 698375 128

The Department of Justice will file a response on behalf of Defendants Office of Personnel Management et al.

rms

As the District COUli found, the issue of DOMA's constitutionality is

squarely presented in this case: "The pertinent facts are undisputed. Plaintiffs are

gay men or lesbians who legally married a person of the same sex under the laws

of the States of Connecticut, Vermont and New Hampshire and have applied and

been denied federal marital benefits or sought to file federal income tax returns

based on their married status." (Id. at 11 (footnote omitted.) Specifically:

After more than 30 years of service as a civilian employee of the Department

of the Navy, Office of Naval Intelligence, Joanne Pedersen has been unable to add

her spouse, Ann Meitzen, to the health insurance coverage she receives under the

Federal Employees Health Benefits Program ("FEHB") (Id. at 11-12.);

Damon Savoy, a federal government attorney with the Office of the

Comptroller of the Currency, has been denied the right to add his spouse, Plaintiff

even UH'>'U~,H

covers

(Id. 15.);

Raquel Ardin and Lynda DeForge, both Navy veterans and both long term

4

Case: 12-3273 Document: 9 Page: 117 08/21/2012 698375 128

one FEHB "Self and Family" plan for their health insurance needs and instead

purchase separate "Self Only" plans (Id. at 13.);

Lynda DeForge has been denied leave under the Family and Medical Leave

Act to care for Ardin, who suffers from a serious medical condition that requires

DeForge to take offa day of work every three months to transport Ardin and care

for her (Id. at 13.);

Geraldine Artis and Suzanne Artis, the parents of three children, have been

forced to file federal income tax returns as "head of household" and "single," thus

imposing a higher aggregate tax burden, notwithstanding that they have been

married since 2009 (Id. at 14.);

Bradley Kleinerman and James ("Flint") Gehre, who have three adopted

sons, have similarly faced higher income taxes because of their inability to file

their federal income tax returns with the "married" status (Id. at 15.);

Widower Gerald Passaro, after losing his husband, was denied the

"One-Time Lump-Sum Death Benefit" from the Social Security Administration

that is ordinarily available to a surviving spouse. (Id. at 12.) In addition, Passaro

was denied the Qualified Preretirement Survivor Annuity ("QPSA") that

ordinarily guaranteed to a

'-'lJ'J\A,"'''-' under a defined benefit pension in

which his deceased husband had been a vested participant at the time of his death

5

Case: 12-3273 Document: 9 Page: 118 08/21/2012 698375 128

(Id.);2 and

Retired New Hampshire school teachers Joanne l\tlarquis and Janet Geller

are unable to access from the New Hampshire Retirement System a financial

supplement for Geller - as Marquis's spouse - to purchase Medicare Part B

insurance. (ld. at 14.).

.. mrernnler:u: s Kesp«:mSie

11, more

case was

IS

reVIeW

,H'~,nYH' b;2lSeel on

orientation and that,

sranOetro, Section 3 of

IS unc:on~)tltljtlOiilal. (ld. 4.) Unlike DOMA cases

suit the fJol'Jor,',?VI

Connecticut and the

case 11/1"0"",'

In

York would

the JD...;nlJr'''I''*tlfY\nln~

of

that JHV<.H'-l

2 A private, defined

plan is

to both the Employee

Retirement Income Security Act ("ERISA") as well as the Internal Revenue Code

and is required under both statutes to provide a Qualified Preretirement Survivor

Annuity ("QPSA") to the

spouse of "vested participant who dies

6

Case: 12-3273 Document: 9 Page: 119 08/21/2012 698375 128

lV,!7,'/l1' cases pn)ct;:eded

5, reS1Jectp

on 11 In Po,doJ",'t::>n

UCTOtJer

.)

~u-<u",-,v summary judgment nOIWng that there "no conceivable "'""nr,',,

into

UL'vLtt,IOL "DOMA fails to pass constitutional muster under even the

Case: 12-3273 Document: 9 Page: 120 08/21/2012 698375 128

it

a r e J I J ' J U c ) v J

same

qw;;stllon IS

this

has

o f " . H ' v . >

"to

good cause" suspend

Court is "!.l(~nerOllS In ,y,-r»... h,,",,.,. motions to expedite." re

lcelarul , I 12 F 504 (2d . 1997) (table). As set fmih below, eXrledJited

L

Because DOMA imposes indisputable de jure discrimination on the basis of

sexual orientation, DOMA consistently undermines the security of the Plaintiffs-

1YI':lrrl':lrr<'c under federal

a

"count" for some lY"l<:1rn-,HTf'<::

nl11'n",,,,,,,,,,

others. And of course, each Plaintiff satisfies standing requirements with

IS a

8

Case: 12-3273 Document: 9 Page: 121 08/21/2012 698375 128
the Government may no longer enforce DOMA. See pp. 3-6 supra. DOl\tlA stains the Plaintiffs-Appellee's marriages and burdens them
economically. Such considerations manifestly support expedited consideration of this appeal.
Judicial Economy In Considering this Important Constitutional Question. Expediting this appeal to allow coordinated consideration of this case and Windsor would advance judicial economy by allowing the same panel to address the critical question ofDOMA's constitutionality in both Windsor and Pedersen. Cf Kirch v. Liberty Media Corp., 449 F. 3d 388,404 (2d Cir. 2006) (judicial economy served by directing appeals from district court's further orders or judgments in particular case to the same panel). Expediting this appeal also serves judicial economy by complementing fVindsor in demonstrating DOMA's impact on other federal programs (federal income tax, federal employee and retiree workplace benefits, and social security benefits), important federal statutes (e.g. ERISA, FMLA), state retirement systems (e.g. health benefits), and private companies (e.g. pension plans).
meHle'll now VVUUIU obtained a District Court judgment within two months of the JiVindsor plaintiffs judgment - to participate in u"'L.i"F-, the rule of law that will define their
9

Case: 12-3273 Document: 9 Page: 122 08/21/2012 698375 128
this Court's resolution of the constitutionality of Section 3 of DOMA with respect to both Windsor and Pedersen.

While the First Circuit and two District Court Judges in the Ninth Circuit

have held that DONIA cannot be sustained under rational basis review based on

existing Circuit precedent,3

JUU1Vl'C<1

LvUL<'''i'VU is an open question in this

Circuit.

The

issue in could !JO.('!OlV'('LJ'VI

as it addresses this important question.

on

testimony in

provides a detailed

the factors the Supreme Court has identified in cases

involving other classifications. Importantly, the District Court's analysis addresses

Case: 12-3273 Document: 9 Page: 123 08/21/2012 698375 128

SLAG's contentions point-by-point, again with detailed references to the case record. See e.g., id. at 36-43 (addressing history of discrimination and expert affidavit of George Chauncey, docket no. 74); 48-62 (as to "defining or immutable characteristic," addressing Peplau expert affidavit and rebuttal affidavit with deposition testimony, docket nos. 73, 83); and 62-75 (addressing political power and expeli affidavit of Gary Segura, docket no. 72).

Finally,

orcmosed schedule is ,."'r>0AY1,r> .... '

and

is therefore no

reason to delay consideration of

is well-

filed n"""r,,,,'''''' in Gill v.

In

including a

13; three

Courts

1948017;

15409 (9th Cir.

35

5

11

Case: 12-3273 Document: 9 Page: 124 08/21/2012 698375 128

of this Intervener- ,...A,r.c,rlo,c'C'lf'"nn

'C'l,~r'''''C'lI:

Defendant's Brief and Defendants-Appellants' Brief are due no later than

September 12,2012; Plaintiffs-Appellees Brief is due no later than September 26,

2012; and the Intervener-Defendant's Reply Brief Defendants-Appellants' Reply

Brief are due no later than October 3,2012.

~n[)\7P schedule, P!}]LmtlH:s-!lmrle

counsel

Case: 12-3273 Document: 9 Page: 125 08/21/2012 698375 128
Joanne Pedersen & Ann Meitzen Gerald V. Passaro, II Raquel Ardin & Lynda Deforge Janet Geller & Joanne Marquis Suzanne & Geraldine Artis Bradley Kleinennan & James Gehre And Damon Savoy & John Weiss
By their attorneys,
GAY & LESBIAN ADVOCATES & DEFENDERS
/s/ Gary D. Buseck Gary D. Buseck, #ct28461 gbuseck@glad.org Mary L. Bonauto, #ct28455 mbonauto@glad.org Vickie L. Henry, #ct28628 vhenry@glad.org Janson Wu, #ct28462 jwu@glad.org 30 Winter Street, Suite 800 Boston,MA 02108 (617) 426-1350
JENNER & BLOCK
Paul M. Smith Paul M. Smith (of "VLH1J'vl psmith@jenner.com Luke Platzer (of counsel) lplatzer@jenner.com l\1atthew J. Dunne (of counsel)

Case: 12-3273 Document: 9 Page: 126 08/21/2012 698375 128
mcox@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060
HORTON, SHIELDS & KNOX
lsi Karen L. Dowd Karen L. Dowd, #ct 09857 kdowduvhortonshieldsknox.com
'--/
Kenneth J. Bartschi, #ct 17225 kbartschi@hortonshieldsknox.com 90 Gillett St. Hartford, CT 06105 (860) 522-8338
AS TO PLAINTIFFS SUZANNE & GERALDINE ARTIS BRADLEY KLEINERMAN & JAMES GEHRE
SULLIVAN & WORCESTER LLP
lsi David 1. Nagle J. Nagle, #ct28508 dnagle@sandw.com Richard L. Jones, #ct28506 rjones@sandw.com One Post Office Square Boston,MA 02109 (617) 338-2800
14

Case: 12-3273 Document: 9 Page: 127 08/21/2012 698375 128
Judson Littleton Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Email: judson.o.littleton@usdoj.gov
lsi Karen L Dowd Karen L. Dowd

Case: 12-3273 Document: 9 Page: 128 08/21/2012 698375 128

 </s> Case 3:10-cv-01750-VLB Document 119 Filed 08/17/12 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

_____________________________________

JOANNE PEDERSEN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF

)

PERSONNEL MANAGEMENT, et al.,

)

)

Defendants.

)

_____________________________________ )

No. 3:10-cv-01750-VLB

NOTICE OF APPEAL

Defendants hereby appeal to the United States Court of Appeals for the

Second Circuit from the Judgment dated August 2, 2012 (Dkt. No. 118) and

the underlying Memorandum of Decision dated July 31, 2012 (Dkt. No. 116).

Date: August 17, 2012

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General

DAVID B. FEIN United States Attorney

ARTHUR R. GOLDBERG Assistant Branch Director

/s/ Judson O. Littleton

___

JUDSON O. LITTLETON [phv04345]

Trial Attorney

U.S. Department of Justice

Civil Division

Federal Programs Branch

20 Massachusetts Ave. NW

Washington, DC 20530

Tel: (202) 305-8714

Fax: (202) 616-8470

Judson.O.Littleton@usdoj.gov

Case 3:10-cv-01750-VLB Document 119 Filed 08/17/12 Page 2 of 2 CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2012, a copy of the foregoing Notice of Appeal was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System.
/s/ Judson O. Littleton__ JUDSON O. LITTLETON
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 </s> Case 3:10-cv-01750-VLB Document 116 Filed 07/31/12 Page 1 of 104

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JOANNE PEDERSEN, et al.,

:

Plaintiffs,

:

:

v.

:

:

OFFICE OF PERSONNEL

:

MANAGEMENT, et al.,

:

Defendants,

:

:

v.

:

:

BIPARTISAN LEGAL ADVISORY GROUP :

OF THE UNITED STATES HOUSE OF

:

REPRESENTATIVES ,

:

Intervenor-Defendant.

:

CIVIL ACTION NO. 3:10-cv-1750 (VLB)
July 31, 2012

MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO
DISMISS [Dkt. #80] Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the
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plethora of federal laws which rely on DOMA’s definitions. Currently pending

before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the

Plaintiffs asserting that they are entitled to judgment as a matter of law, along

with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the

Bipartisan Legal Advisor Group of the United States House of Representatives,

(“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both

motions seek ultimate resolution of this matter, the Court will consider and

review the motions simultaneously, addressing the fundamental question of

whether or not Section 3 of DOMA can withstand the applicable level of

constitutional scrutiny.

I.

Factual Background

A. History of DOMA

DOMA was enacted on September 21, 1996 and signed into law by

President Clinton after passing both houses of Congress with large majorities.

Section 3 of DOMA, the provision which is the subject of the Plaintiffs’

constitutional challenge, codifies the following definition of the terms “marriage”

and “spouse” as a matter 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.

1 U.S.C. §7. As expressly stated in the House Judiciary Committee Report on

DOMA, DOMA was drafted as “a response to a very particular development in the

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State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 2-4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited statesanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and [. . . ] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newly-coined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage,
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ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new.items/d04353r.pdf. 2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)
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illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Foundation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913).
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Under these regulations, those eligible for coverage may elect to enroll for
individual coverage, or for both individual and family coverage. Id. (citing 5
U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to
“the spouse of an employee or annuitant [or] an unmarried dependent child under
22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the
demands of the workplace with the needs of families” by “entitl[ing] employees to
take reasonable leave for medical reasons, for the birth or adoption of a child,
and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible
employees to take up to twelve work-weeks of unpaid leave during any twelve-
month period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the
Department of Labor to implement the FMLA define the term “spouse” for
purposes of the FMLA as “a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.” 29 U.S.C.
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).
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§2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(I), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that defined-benefit pension plans are subject to both
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ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire 1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 143-44 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-
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sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 2715 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
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2. Same-Sex Marriage in Vermont On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission, http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into
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law on May 31, 2007. 2007–2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes SameSex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.html.
c. Plaintiffs’ Factual Backgrounds The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3]. Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by same-sex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.
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insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶6-7. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
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Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
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Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means
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only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household. Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for
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and purchase health care coverage on the private insurance market. Id. at ¶¶66-

67. Savoy applied to have his husband added to his existing health plan under

the FHEB Program and his application was denied. Id. at ¶¶69-70.

II.

Standards of Review

A. Motion to Dismiss

“‘To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.’”

Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a]

pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the

elements of a cause of action will not do.’ Nor does a complaint suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (citations and internal quotations omitted). “Where a complaint

pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short

of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (internal citations omitted).

In considering a motion to dismiss for failure to state a claim, the Court

should follow a “two-pronged approach” to evaluate the sufficiency of the

complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can

choose to begin by identifying pleadings that, because they are no more than

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conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment Summary judgment should be granted “i f the movant show s that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law .’” Fed.R.Civ.P. 56( a). The movi ng party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and cred it all factual inferences that could be drawn in favor of the part y against whom summary judgment is s ought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co . v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L .Ed.2d 538 (1986)). “If there is an y evidence in the record that could re asonably support a ju ry's verdict for the nonmoving party , summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Ci r.2006) (internal quotation marks and citation omitted).
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“A party opposing summary judgment cannot defeat the motion by relying on

the allegations in his pleading, or on conclusor

y statements, or on mere

assertions that affidavits supporting the motion are not credible. At the summary

judgment stage of the procee ding, Plaintiffs are requi red to present admissible

evidence in support of their a llegations; allegations alone, w ithout evidence to

back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,

2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks an d

citations omitted); Martinez v. State of Connecticut , No. 3:09cv1341 (VLB), 2011

WL 4396704 at *6 (D. Conn. Sept. 21, 2011) . Where there is no evidence up on

which a jur y could p roperly proceed to f ind a verd ict for the part y producing it

and upon w hom the onus of proof is imposed, such as w here the evidence

offered consists of conclusor y assertions without further s upport in the record,

summary judgment may lie. Fincher v. Depository Trust and Clearance Co. , 604

F.3d 712 (2d Cir. 2010).

III.

Discussion

A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns

BLAG argues that those Plaintiffs who claim that DOMA prohibited them

from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj.

to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the

joint filing of married persons, 26 U.S.C. §6013, does not on its own extend to

same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a

“husband and wife may make a single return jointly of income taxes…” 26 U.S.C.

§6013(a). BLAG argues that these Plaintiffs lack standing “because the joint

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filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases' and ‘Controversies' and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’—injury-infact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631–32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise … [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26
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U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s genderneutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the
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reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial
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of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
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The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in the record,’… are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state
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law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment's Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection
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of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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 quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)).
The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or
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persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual
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orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99 (1982). Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships”. See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671
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F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J. dissenting) (acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deepseated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to
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equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification BLAG contends that sexual orientation has never been viewed as a suspect
or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasisuspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression
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before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class … Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. 640 n.1; Lawrence v. Texas, 529 U.S. 558, 529 n.1 (2003). In view
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of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of California noted “[w]hen the premise for a case's holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983-984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can … be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast
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majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); Ben-Shalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military's mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting
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Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Rostker v. Goldberg,
453 U.S. 57, 70 (1981) (acknowledging that “judicial deference to such
congressional exercise of authority is at its apogee when legislative action under
the congressional authority to raise and support armies and make rules and
regulations for their governance is challenged”). Considering the inimitable
circumstances attending military regulations and the uniquely deferential
approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on
Bowers, which was rejected in Lawrence, and relied on analyses in the deferential
military context rather than the more discretionary civilian context, the
precedential import of such authority is unpersuasive, particularly given the fact
that the Second Circuit has not had an opportunity to consider the matter.
The Court is mindful of the Supreme Court’s admonition that “‘respect for
the separation of powers’ should make courts reluctant to establish new suspect
classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne,
473 U.S. at 441). The Supreme Court has to date only recognized a handful of
5 The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.
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suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what
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constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors At the outset, this Court is guided by Justice Thurgood Marshall’s
approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ . . . must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the
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stereotype on which they are based, a history of unequal treatment requires

sensitivity to the prospect that its vestiges endure. In separating those groups

that are discrete and insular from those that are not, as in many important legal

distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations

omitted). Thus the Court’s analysis will be cognizant of social, cultural and

political perspectives grounded in experience as opposed to abstract logic and

an awareness that there is likely no single talisman that signals which groups are

the subject of classifications offensive to the principle of equal protection.

i.

History of Discrimination

The first factor courts consider is whether the class has suffered a history

of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries

there have been powerful voices to condemn homosexual conduct as immoral’”

and that “lesbians and gay men have suffered a long history of discrimination

and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG

responds that it “does not dispute that homosexuals have been subject to

discrimination” however BLAG questions the length of this history. This

acknowledgement is emblematic of the incidents of discrimination, including

annulation, negation, ostracism and isolation of the group which is the object of

discrimination resulting in the broader society’s lack of knowledge and

understanding of that group.

BLAG argues that the history of discrimination against homosexuals is

relatively short-lived and ostensibly the product of the twentieth century which

counsels against recognizing sexual orientation as a suspect or quasi-suspect

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class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].
Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey.html (“It’s important to note that there’s been a long history in the regulation of sexual acts
6 BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert's opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).
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of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the
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homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity
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emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment
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because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 11-86, at 10 (2009)).
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The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination…”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinksi, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of
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homosexuality is increasing, gay men and lesbians have endured a long history

of discrimination, both official and private.” Able v. United States, 968 F.Supp.

850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The

Able court noted that discrimination against homosexuality began in the second

half of the twelfth century and that the “‘earliest and most drastic legislation

against gay people enacted by any government of the High Middle Ages’ were

laws passed by the European conquerors of Jerusalem imposing death by

burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social

Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that

during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies,

and other groups, using the pink triangle as the symbol to designate

homosexuality.” Id. at 852.

In sum, the evidence in the record detailing the long history of anti-gay

discrimination which evolved from conduct-based proscriptions to status or

identity-based proscriptions perpetrated by federal, state and local governments

as well as private parties amply demonstrates that homosexuals have suffered a

long history of invidious discrimination. Moreover this conclusion is consistent

with the majority of cases which have meaningfully considered the question and

likewise held that homosexuals as a class have experienced a long history of

discrimination.

ii.

Ability to Contribute to Society

Plaintiffs argue “there can be no credible dispute about whether sexual

orientation bears a relation to one’s ‘ability to perform or contribute to society.’”

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[Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.
Certainly the recent repeal of “Don’t Ask Don’t Tell” and the military’s contemporaneous recognition of the long history of valiant honorable service of homosexual servicemen and women attests to the fact that homosexuals have made the ultimate contribution to society. Defense Secretary Leon Panetta recently highlighted these contributions and “thank[ed] gay and lesbian service members, LCGT civilians, and their families for their dedicated service to our country.” Leon Panetta, Secretary Penetta Video Message for Lesbian, Gay, Bisexual, Transgender Pride Month from the Pentagon, U.S. Dep’t. of Def. (June 15, 2012), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=5062. Secretary Panetta stated that “[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you
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faithfully served your country with professionalism and courage. And just like your fellow service members, you put your country before yourself…The pursuit of equality is fundamental to the American story. The successful repeal of ‘Don’t Ask, Don’t Tell’ proved to the Nation that just like the country we defend, we share different backgrounds, different values, and different beliefs -- but together, we are the greatest military force in the world.” Id.
In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinksi, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 688, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation … bears no relation whatsoever to an individual’s ability to perform, or to participate
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in, or contribute to, society … If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable … that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court
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has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or physical disability … is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this
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factor weighs strongly in favor of recognizing sexual orientation as a quasi-

suspect or suspect class.

iii.

Defining or Immutable Characteristics

Another relevant consideration is whether the characteristic that defines

the class as a discrete group is immutable or otherwise not within the member’s

control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638

(1986)). It does not appear that this factor is necessary to trigger heightened

scrutiny in view of the Supreme Court’s recognition of suspect class to groups

with ostensibly mutable characteristics. The Supreme Court has held that

resident aliens constitute a suspect class despite the ability to opt out of the

class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977). Additionally,

one’s status as illegitimate may be subject to change and is therefore not a

strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431 (1998)

(acknowledging that illegitimate child may be legitimated by father). Further as

the Kerrigan court astutely observed “not infrequently, the United States

Supreme Court has omitted any reference to immutability in discussing the

identifying or distinguishing characteristic of a particular class.” Kerrigan, 289

Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 20, 25 (1973); Graham v. Richardson, 403

U.S. 365, 371-72 (1971)). Consequently, immutability is not an essential

requirement but merely one indication that the classification reflects “deep-

seated prejudice rather than legislative rationality in pursuit of some legitimate

objective.” Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20;

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Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peer-reviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be successful and involve some risk of harm.” Id. at ¶26 (citing APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force, available at http://www.apa.org/pi/lgbt/publications/therapeutic-response.pdf). The American Psychiatric Association, American Psychological Association, American
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Counseling Association, National Association of Social Workers and the American Academy of Pediatrics all “have adopted policy statements cautioning professionals and the public about these treatments.” Id. at ¶27. See also Perry v. Schwarzenegger, 704 F.Supp.2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”). Lastly, studies have also indicated that the majority of gay men and lesbians report that they experienced no choice or little choice about their sexual orientation. [Dkt. # 73, Peplau Aff., ¶25] (citing 2010 national survey conducted with representative sample of more than 650 self-identified lesbian, gay and bisexual adults, 88% of gay men reported that they had “no choice,” and 7% reported “very little choice” while 68% of lesbians responded they had “no choice at all” and 15% reported having “very little choice.”).
Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied by Plaintiffs’ own experts…These differing definitions show that these terms are amorphous and do not adequately describe a particular class.” [Dkt. #82, p. 2223]. Although there might be subtle semantic distinctions between each of these terms from an academic perspective, each term is principally defined as pertaining to same-sex attraction or sexual behavior and could not be understood without reference to this elemental concept. In fact, the colloquial definitions of
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“gay,” “lesbian” and even “sexual orientation” are each defined by reference to “homosexual” which is defined as sexual desire or intercourse between individuals of the same sex. Merriam Webster defines “Homosexual” as “of, relating to, or characterized by a tendency to direct sexual desire toward individuals of one’s own sex” or “of, relating to, or involving sexual intercourse between individuals of the same-sex.” Homosexual Definition, MERRIAMWEBSTER.COM, http://www.merriam-webster.com/dictionary/homosexual (last visited July 27, 2012). “Gay” is defined as “homosexual; especially: a homosexual male.” Gay Definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/dictionary/gay (last visited July 27, 2012). “Lesbian” is defined as “a woman who is homosexual.” Lesbian Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/lesbian (last visited July 27, 2012). Lastly, “sexual orientation” is defined as “the inclination with respect to heterosexual, homosexual and bisexual behavior.” Sexual orientation definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/medical/sexual%20orientation (last visited July 27, 2012). Although scholars may quibble over subtle differences in terminology, it is clear that none of these terms are neither amorphous nor incapable of describing a particular class. Indeed, the colloquial understanding of each of these terms readily describe a class that is defined by same-sex attraction and sexual behavior. BLAG’s contention that “Plaintiffs’ claims run headlong into the differing definitions of the terms” risks elevating abstract logic over experience. Here
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experience palpably demonstrates that each of these terms is capable of describing a particular class with precision and clarity.
BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep., 25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence
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that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of selfidentified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men
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and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in
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their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge
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same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also
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consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit
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immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev'd, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S. 1001 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2290 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such
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circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct … [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to … the development of human personality…” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so
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fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouini v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual . . . being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person's fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinksi, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
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[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly,
immutability should “describe those traits that are so central to a person's
identity that it would be abhorrent for government to penalize a person for
refusing to change them.” Id.
This Court finds the reasoning of the Ninth Circuit to be persuasive in view
of the fact that the Supreme Court has already demarcated sexual intimacy, both
heterosexual and homosexual, as an integral part of human freedom and the
development of human personality, thereby suggesting that sexual orientation
should be considered a defining characteristic fundamental to one’s identity
much like race, ethnicity or gender. Where there is overwhelming evidence that a
characteristic is central and fundamental to an individual’s identity, the
characteristic should be considered immutable and an individual should not be
required to abandon it. To hold otherwise would penalize individuals for being
unable or unwilling to change a fundamental aspect of their identity; an aspect
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which has been recognized as an integral part of human freedom. On this basis

as well, this factor weighs in favor of the application of heightened scrutiny.

iv.

Minority Status and Political Powerlessness

The final factor courts consider is whether the subject group is “a minority

or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal

quotation marks omitted). “This factor examines relative political power and

seeks the answer the question whether the ‘discrimination is unlikely to be soon

rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting

Cleburne, 473 U.S. at 440).

Courts place less weight with respect to this fourth and final factor

considering that the Supreme Court has recognized gender as a quasi-suspect

class despite the fact that the group was neither a minority nor truly politically

powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging

that women “do not constitute a small and powerless minority”); see also

Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the

[political powerlessness] test pales in comparison to the question[s] of whether

... the characteristic bears any relationship to the individual[']s ability to function

in society, whether the group has suffered a history of discrimination based on

misconceptions of that factor and whether that factor is the product of the

group's own volition.”); In re Marriage cases, 43 Cal. 4th at 842-43 (concluding

that political powerlessness cannot be required for heightened scrutiny to apply

because other groups like women and African Americans continue to be

accorded heightened protection although they are no longer lacking in political

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power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group's political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group's political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial factfinding.” 289 Conn. at 171. Despite this inherent difficulty, the Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of Non-Adjudicative Facts, ¶71].7 Most recently months after
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is
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the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/the-fix/post/north-carolina-passes-gaymarriage-ban-amendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of political power
appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis. 8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.
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and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly
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recognized the gains women had made politically when they recognized gender
as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court
ultimately declined to view this factor in a rigid fashion instead allowing women
to satisfy this factor despite the fact that women were not entirely politically
powerless. The Supreme Court concluded that while “[i]t is true, of course, that
the position of women in America has improved markedly in recent decades”
despite such improvement “women 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.” Id. at 685-86. Consequently,
the Supreme Court held that “when viewed in the abstract, women do not
constitute a small and powerless minority” however “in part because of past
discrimination, women are vastly underrepresented in the Nation’s
decisionmaking councils.” Id. at 686 n.17.
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The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 437 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not
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establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not
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consider every plausible argument to be a ‘reasonable’ one” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration's reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” [Dkt. #82, p. 1314]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5%
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of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/news/article/New-state-law-requires-LGBT-history-intextbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t
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say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/news/nation/story/2012-02-16/tennessee-billhomosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn.gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis.cbslocal.com/2012/04/23/controversial-dont-say-gay-bill-debated-inmo-house/; see also proposed House Bill No.2051, available at http://www.house.mo.gov/billtracking/bills121/biltxt/intro/HB2051I.htm. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy,
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President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socio-economic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
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BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and
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to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.
In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be … rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding“[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection… In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendment-the imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once
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so identified publicly, members of this group are particularly powerless to pursue
their rights openly in the political arena.” Rowland v. Mad River Local School
Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985). Although not
necessary to trigger heightened scrutiny, this Court finds that gay men and
lesbians lack meaningful political power sufficient to satisfy this factor of the
suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals
display all the traditional indicia of suspectness and therefore statutory
classifications based on sexual orientation are entitled to a heightened form of
judicial scrutiny.9 However, the Court need not apply a form of heightened
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasi-suspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). As the
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scrutiny in the instant case to conclude that DOMA violates the promise of the
equal protection as it is clear that DOMA fails to pass constitutional muster under
even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial
recognition as a suspect classification. However, the Supreme Court has
declined to afford them such status, opting instead to apply rational basis review
rather than definitively address whether sexual orientation constitutes a suspect
or quasi-suspect class. Accordingly, the Court will apply rational basis review.
Even under this, the least intrusive level of review, Section 3 of DOMA fails to
withstand constitutional scrutiny.
Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinksi, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 560. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts. 10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.
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As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical , it may be, and unscientific.” Metropolis Theatre Co.
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v. Chicago, 228 U.S. 61, 69-70 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress's generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification, where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S.
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at 320. The House Committee Report identifies “four governmental interests
advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the Intervenor-Defendant, has raised several
additional objectives which could also have motivated Congress to include a
classification based on sexual orientation in Section 3 of DOMA. Specifically,
BLAG asserts that “Congress rationally could have been, and in fact was,
concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc; 3) To maintain consistency and uniformity with regard
to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing,
begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the
articulated legislative objectives, but also any “reasonable conceivable set of
facts that could provide a rational basis for the classification,” the Court will
consider all of the aforementioned objectives to determine whether the Plaintiffs
have sustained their burden to negate “every conceivable basis which might
support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
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1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside
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of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In
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particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and childrearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging
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extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits upon such marriages would further erode the societal conception of marriage as the appropriate child-rearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged
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to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of later-emerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide
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for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit same-sex couples to adopt children and
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afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and
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Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents samesex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual
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couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).
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be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately
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burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon opposite-sex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition . . . by an individual that may be a debtor . . . and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow
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enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude same sex couples . . . from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage same-sex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope
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belies any rational relationship to the purported objective of promoting dualgendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.
3. Defending Traditional Notions of Morality The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate . . . And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id. Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed
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it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponent’s Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at articles.courant.com/2003-03-25/features/0303250984_1_same-sexmarriage-same-sex-ceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ . . . ] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral disapproval of [a] group,
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like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.
BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public
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fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.
Addressing first the assertion that precluding the extension of federal marital benefits to same-sex married couples will preserve government resources, the Court finds that such assertion has no basis in reality in light of the Congressional Budget Office’s June 21, 2004 Report. The Report concluded that the net effect of federal recognition and conferral of marital benefits upon same-sex marriages would be to “improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years.” CONGRESSIONAL BUDGET OFFICE, THE POTENTIAL BUDGETARY IMPACT OF RECOGNIZING SAME-SEX MARRIAGES, at 1 (June 21, 2004), available at https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5559/06-21samesexmarriage.pdf. Neither the House Report nor BLAG’s pleadings present any evidence to the contrary. This conclusion by the Congressional Budget Office, in the absence of any conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational
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basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in
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protecting state sovereignty and democratic self-governance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to
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Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of samesex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded same-sex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore,
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contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire.12 This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire. BLAG’s concern for democratic self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
12 See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.
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6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to same-sex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples.
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Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most
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powerful. Such a rationale would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the
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federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
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IV.

Conclusion

In sum, having considered the purported rational bases proffered by both

BLAG and Congress and concluded that such objectives bear no rational

relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no

conceivable rational basis exists for the provision. The provision therefore

violates the equal protection principles incorporated in the Fifth Amendment to

the United States Constitution.

For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is

GRANTED, and Intervenor-Defendant BLAG’s Motion to Dismiss is DENIED.

_______/s/ Hon. United

IT IS SO ORDERED.
___________ Vanessa L. Bryant
States District Judge

Dated at Hartford, Connecticut: July 31, 2012

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 </s> Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 1 of 22
APPEAL,CLOSED,EFILE
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:10−cv−01750−VLB

Pedersen et al v. Office of Personnel Management et al Assigned to: Judge Vanessa L. Bryant Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 11/09/2010 Date Terminated: 08/02/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Joanne Pedersen

represented by Gary D Buseck Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108−4720 617−426−1350 Email: gbuseck@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108−4720 617−426−1350 Email: jwu@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860−522−8338 Fax: 860−728−0401 Email: kdowd@hortonshieldsknox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860−522−8338 Fax: 860−728−0401 Email: kbartschi@hsklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L Bonauto Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108−4720 617−426−1350 Email: mbonauto@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108−4720

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 2 of 22

617−426−1350 Email: vhenry@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Ann Meitzen

represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gerald V. Passaro, II

represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address)

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 3 of 22

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lynda Deforge

represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Raquel Ardin

represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 4 of 22

Plaintiff Janet Geller
Plaintiff Joanne Marquis
Plaintiff

represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary D Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen L. Dowd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth James Bartschi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary L Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 5 of 22

James Gehre

represented by David J Nagle Sullivan & Worcester One Post Office Square Boston, MA 02109 617−338−2800 Email: dnagle@sandw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard L Jones Sullivan & Worcester One Post Office Square Boston, MA 02109 617−338−2800 Email: rjones@sandw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Damon Savoy

represented by Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff John Weiss

represented by Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 6 of 22

ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bradley Kleinerman

represented by David J Nagle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard L Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Suzanne Artis

represented by David J Nagle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard L Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 7 of 22

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Geraldine Artis

represented by David J Nagle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard L Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen L. Dowd (See above for address) ATTORNEY TO BE NOTICED

Gary D Buseck (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Office of Personnel Management

represented by David Christopher Nelson U.S. Attorney's Office−NH 157 Church St., 25rd floor New Haven, CT 06510 203−821−3700 Fax: 203−773−5373 Email: David.C.Nelson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Lin U. S. Department of Justice−Fed Programs Branch Civil Division 20 Massachusetts Ave., NW Washington, DC 20001 202−514−3716 Fax: 202−616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judson O Littleton U. S. Dept. of Justice−Mass Ave 20 Massachusetts Ave., NW Washington, DC 20530 202−305−8714

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 8 of 22

Fax: 202−616−8470 Email: judson.o.littleton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Timothy F. Geithner in his official capacity as the Secretary of the Treasury

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael J. Astrue in his office capacity as the Commissioner of the Social Security

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States Postal Service

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John E. Potter in his official capacity as the Postmaster General of the United States of America

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 9 of 22

ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Douglas H. Shulman in his official capacity as the Commissioner of Internal Revenue

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Eric H. Holder, Jr. in his official capacity as the United States Attorney General

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Hilda L. Solis in her official capacity as the Secretary of Labor

represented by David Christopher Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John Walsh

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 10 of 22

U. S. Dept. of Justice−Mass Ave Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 202−305−8714 Fax: 202−616−8470 Email: judson.o.littleton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States Of America

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judson O Littleton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bipartisan Legal Advisory Group of the U.S. House of Representatives

represented by Conor Dugan Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, DC 20006 202−234−0090 Email: cdugan@bancroftpllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

H. Christopher Bartolomucci Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, DC 20006 202−234−0090 Fax: 202−234−2806 Email: cbartolomucci@bancroftpllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kerry W. Kircher Office of the General Counsel US House Representatives 219 Cannon House Office Bldg. Washington, DC 20515−6532 202−225−9700 Fax: 202−226−1360 Email: kerry.kircher@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul D Clement Bancroft PLLC 1919 M Street, N.W.

Case: 3:10-cv-1750 As of: 04/12/2015 12:43 PM EDT 11 of 22
Suite 470 Washington, DC 20006 202−234−0090 Fax: 202−234−2806 Email: pclement@bancroftpllc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 11/09/2010
11/09/2010 11/09/2010 11/09/2010 11/09/2010
11/10/2010 11/12/2010
11/19/2010 12/03/2010 12/06/2010 12/16/2010 12/16/2010

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Postal Service filed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis.(Grady, B.) Modified on 11/9/2010 to add text (Grady, B.). (Entered: 11/09/2010)
Filing fee received from Glad Park Square Advocates: $ 350.00, receipt number H032188 (Grady, B.) (Entered: 11/09/2010)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 02/09/2010. Amended Pleadings due by 1/8/2011; Discovery due by 5/11/2011; Dispositive Motions due by 6/10/2011. Signed by Clerk on 11/09/2010. (Grady, B.) (Entered: 11/09/2010)
3 ELECTRONIC FILING ORDER − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER: Signed by Judge Vanessa L. Bryant on 11/09/2010. (Grady, B.) (Entered: 11/09/2010)
4 NOTICE TO COUNSEL: Counsel initiating or removing this action is responsible for serving all parties with attached documents and copies of 2 Order on Pretrial Deadlines, 3 Electronic Filing Order, 1 Complaint, filed by Lynda Deforge, Gerald V. Passaro, II, Ann Meitzen, Janet Geller, Joanne Marquis, Raquel Ardin, Joanne Pedersen. Signed by Clerk on 11/09/2010. (Grady, B.) (Entered: 11/09/2010)
5 NOTICE of Appearance by Janson Wu on behalf of Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen (Wu, Janson) (Entered: 11/10/2010)
6 Summons Issued as to Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Postal Service, U.S. Attorney and U.S. Attorney General. Counsel receiving this electronic notice should download the attached summons for service in accordance with Fed.R.Civ.P. 4 and LR 4. (Grady, B.) (Entered: 11/12/2010)
7 NOTICE of Appearance by Judson O LIttleton on behalf of Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Postal Service (LIttleton, Judson) (Entered: 11/19/2010)
8 NOTICE of Appearance by David Christopher Nelson on behalf of Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Postal Service in addition to appearances already on file (Nelson, David) (Entered: 12/03/2010)
9 NOTICE of Appearance by Karen L. Dowd on behalf of Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen (Dowd, Karen) (Entered: 12/06/2010)
10 SUMMONS Returned Executed by United States Postal Service. United States Postal Service served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
11 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Michael J. Astrue served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)

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12/16/2010 12/16/2010 12/16/2010 12/16/2010 12/16/2010 12/16/2010 12/16/2010 12/23/2010 12/28/2010 01/03/2011 01/05/2011 01/06/2011
01/10/2011

12 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Timothy F. Geithner served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
13 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Eric H. Holder, Jr served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
14 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Office of Personnel Management served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
15 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. John E. Potter served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
16 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Douglas H. Shulman served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
17 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. Hilda L. Solis served on 11/17/2010, answer due 1/16/2011. (Dowd, Karen) (Entered: 12/16/2010)
18 SUMMONS Returned Executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. (Dowd, Karen) (Entered: 12/16/2010)
19 Joint REPORT of Rule 26(f) Planning Meeting. (Littleton, Judson) (Entered: 12/23/2010)
20 NOTICE of Appearance by Mary L Bonauto on behalf of Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen (Bonauto, Mary) (Entered: 12/28/2010)
21 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Scheduling Conference set for 1/5/2011 at 1:00 PM before Judge Vanessa L. Bryant. Defendant's counsel is directed to contact chambers at (860) 240−3123 with all parties on the line. (Engel, J.) (Entered: 01/03/2011)
22 Minute Entry for proceedings held before Judge Vanessa L. Bryant: Telephone Conference held on 1/5/2011. 20 minutes(Court Reporter D. Smith (ECRO).) (LaLone, L.) (Entered: 01/05/2011)
23 SCHEDULING ORDER. The parties' Rule 26(f) Report 19 is approved and the Court sets the following case management schedule: Plaintiffs' First Amended Complaint is due by 1/14/11; Defendants' Motion to Dismiss is due by 3/11/11; Plaintiffs shall file a Cross−Motion for Judgment on the Pleadings or, if Plaintiffs seek to submit facts beyond those which may properly be considered on a motion for judgment on the pleadings, including facts of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence (see Richardson v. Suffolk Bus Corp., No. 09−CV−3586, 2010 WL 2606266, at *3 (E.D.N.Y. June 22, 2010)), a Cross−Motion for Summary Judgment, by 3/31/11; Defendants' Response to Plaintiffs' Cross−Motion for Judgment on the Pleadings/Cross−Motion for Summary Judgment is due by 5/16/11; and Plaintiffs' Reply as to their Cross−Motion for Judgment on the Pleadings/Cross−Motion for Summary Judgment is due by 6/20/11. As the parties have indicated that they expect this matter can be resolved through dispositive motion practice, the Court will not set deadlines in anticipation of trial at this time. Signed by Judge Vanessa L. Bryant on 1/6/11. (Engel, J.) (Entered: 01/06/2011)
24 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 11 Summons Returned Executed as to USA (Michael Astrue)

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(Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
25 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 12 Summons Returned Executed as to USA (Timothy geithner) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
26 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 13 Summons Returned Executed as to USA (Eric Holder) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
27 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 14 Summons Returned Executed as to USA (Elaine Kaplan) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
28 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 15 Summons Returned Executed as to USA (John Potter) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
29 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 16 Summons Returned Executed as to USA (Douglas H. Shulman (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
30 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 17 Summons Returned Executed as to USA (Hilda Solis) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
31 ENTERED IN ERROR . . . Supplemental CERTIFICATE OF SERVICE by Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen re 18 Summons Returned Executed as to USA (U. S. Postal Service) (Dowd, Karen) Re−docketed on 1/13/2011 because the wrong event was used. See document #32. (Grady, B.). (Entered: 01/10/2011)
32 Supplemental summons returned executed by Gerald V. Passaro, II, Ann Meitzen, Joanne Pedersen, Raquel Ardin, Lynda Deforge, Janet Geller, Joanne Marquis. (Grady, B.) (Entered: 01/13/2011)
33 AMENDED COMPLAINT (FIRST) against All Defendants, filed by Gerald V. Passaro, II, Joanne Pedersen, Raquel Ardin, Janet Geller, Ann Meitzen, Joanne Marquis, Lynda Deforge, James Gehre, Damon Savoy, John Weiss, Bradley Kleinerman, Suzanne Artis, Geraldine Artis.(Buseck, Gary) (Entered: 01/14/2011)
34 Summons Issued as to United States Of America, John Walsh. Counsel receiving this electronic notice should download the attached summons for service in accordance with Fed.R.Civ.P. 4 and LR 4. (Attachments: # 1 United States of America)(Grady, B.) (Entered: 01/24/2011)
35 NOTICE of Appearance by David J Nagle on behalf of Geraldine Artis, Suzanne Artis, James Gehre, Bradley Kleinerman (Nagle, David) (Entered: 01/25/2011)
36 NOTICE of Appearance by Richard L Jones on behalf of Geraldine Artis, Suzanne Artis, James Gehre, Bradley Kleinerman (Jones, Richard) (Entered: 01/25/2011)
37 SUMMONS Returned Executed by Bradley Kleinerman, Gerald V. Passaro, II, Joanne Pedersen, Suzanne Artis, Raquel Ardin, Janet Geller, Geraldine Artis, James Gehre, Ann Meitzen, Joanne Marquis, Lynda Deforge, Damon Savoy, John Weiss. United

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States Of America served on 2/8/2011, answer due 4/9/2011. (Dowd, Karen) (Entered: 02/22/2011)
38 SUMMONS Returned Executed by Bradley Kleinerman, Gerald V. Passaro, II, Joanne Pedersen, Suzanne Artis, Raquel Ardin, Janet Geller, Geraldine Artis, James Gehre, Ann Meitzen, Joanne Marquis, Lynda Deforge, Damon Savoy, John Weiss. John Walsh served on 2/8/2011, answer due 4/9/2011. (Dowd, Karen) (Entered: 02/22/2011)
39 NOTICE to Court by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh (Attachments: # 1 Letter, # 2 Letter)(Littleton, Judson) Modified on 2/28/2011 to add text (Grady, B.). (Entered: 02/25/2011)
40 Supplemental CERTIFICATE OF SERVICE by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh re 39 Notice (Other), Notice (Other) (Littleton, Judson) (Entered: 02/25/2011)
41 MOTION for Extension of Time To Respond to 33 First Amended Complaint by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh. (Littleton, Judson) Modified on 3/9/2011 to create link to 33 (LaLone, L.). (Entered: 03/08/2011)
42 RESPONSE to Defendants' 41 Motion for Extension of Time filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) Modified on 3/9/2011 to link to motion (Grady, B.). (Entered: 03/08/2011)
43 ORDER granting 41 Defendants' Motion for Extension of Time to Respond to Plaintiffs' First Amended Complaint. In order to permit Congress a full and fair opportunity to participate in this litigation, the current scheduling order (Doc. #23) is hereby suspended pending the filing of a status report by the Defendants informing the Court of the status and timing of Congress' potential participation in this case. The Defendants have agreed to provide such a status report by no later than March 25, 2011. See Doc. # 41 . The Court will enter a new scheduling order upon review of the status report. Signed by Judge Vanessa L. Bryant on 3/9/11. (Engel, J.) (Entered: 03/09/2011)
44 SUMMONS Returned Executed by Bradley Kleinerman, Gerald V. Passaro, II, John E. Potter, John Walsh, Office of Personnel Management, Joanne Pedersen, Suzanne Artis, Raquel Ardin, Timothy F. Geithner, Janet Geller, Hilda L. Solis, United States Postal Service, United States Of America, Douglas H. Shulman, Eric H. Holder, Jr, Geraldine Artis, James Gehre, Ann Meitzen, Michael J. Astrue, Damon Savoy, Lynda Deforge, Joanne Marquis, John Weiss. (Dowd, Karen) (Entered: 03/09/2011)
Set Deadlines/Hearings: Status Report due by 3/25/2011 (LaLone, L.) (Entered: 03/09/2011)
45 SUMMONS Returned Executed by Bradley Kleinerman, Gerald V. Passaro, II, Joanne Pedersen, Suzanne Artis, Raquel Ardin, Janet Geller, Geraldine Artis, James Gehre, Ann Meitzen, Joanne Marquis, Lynda Deforge, Damon Savoy, John Weiss. (Dowd, Karen) (Entered: 03/10/2011)
46 STATUS REPORT by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh. (Littleton, Judson) (Entered: 03/25/2011)
47 NOTICE of Appearance by Kerry W. Kircher on behalf of Bipartisan Legal Advisory Group of the U.S. House of Representatives Appearance by Paul D. Clement, H. Christopher Bartolomucci, and Conor B. Dugan (Kircher, Kerry) (Entered: 04/26/2011)

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04/26/2011 04/27/2011 05/05/2011 05/05/2011 05/12/2011 05/25/2011 05/27/2011 05/27/2011
06/01/2011 07/08/2011
07/08/2011 07/09/2011 07/09/2011

48 MOTION to Intervene for a Limited Purpose by Bipartisan Legal Advisory Group of the U.S. House of Representatives.Responses due by 5/17/2011 (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Kircher, Kerry) (Entered: 04/26/2011)
49 NOTICE of intent to respond by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh re 48 MOTION to Intervene for a Limited Purpose (Littleton, Judson) Modified on 4/28/2011 to add text (Grady, B.). (Entered: 04/27/2011)
50 RESPONSE re 48 MOTION to Intervene for a Limited Purpose filed by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh. (Attachments: # 1 Text of Proposed Order)(Littleton, Judson) (Entered: 05/05/2011)
51 NOTICE by Bipartisan Legal Advisory Group of the U.S. House of Representatives re 50 Response, 48 MOTION to Intervene for a Limited Purpose (Kircher, Kerry) (Entered: 05/05/2011)
52 REPLY to Response to 48 MOTION to Intervene for a Limited Purpose filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 05/12/2011)
53 Consent MOTION for Entry of Scheduling Order Order by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit Proposed Scheduling Order)(Wu, Janson) (Entered: 05/25/2011)
54 ORDER granting 53 Consent Motion for Entry of Scheduling Order. See attached. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011)
55 ORDER granting 48 Motion to Intervene by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the "House"). As all parties to this action agree that the House should be permitted to intervene in this matter to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. § 7, the House's motion is GRANTED. The House and the Department of Justice dispute the specific scope of the House's role in this litigation. The Court reserves judgment on this issue at this time, and will address it in a later ruling. The parties shall proceed with this case in accordance with the Court's Scheduling Order entered with the consent of all parties [Doc. # 54 ]. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011)
Set Deadlines/Hearings: Discovery due by 7/11/2011; Dispositive Motions due by 7/15/2011 (LaLone, L.) (Entered: 06/01/2011)
56 Joint MOTION for Protective Order by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 7/29/2011 (Attachments: # 1 Text of Proposed Order Joint Stipulation and Proposed Order Governing Protection and Exchange of Confidential Information)(Dowd, Karen) (Entered: 07/08/2011)
57 MOTION for Leave to File Excess Pages up to 60 Pages in Support of Motion for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/08/2011)
58 ORDER granting 57 Plaintiffs' Motion for Leave to File Memorandum of Law of up to 60 pages. Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011)
59 ORDER granting 56 Joint Motion for Approval of Stipulation and Order Governing Protection and Exchange of Confidential Information. The Court notes, however, that the Stipulation and Order of Confidentiality shall not effect the parties' obligations

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regarding documents sought to be filed under seal pursuant to Local Rule 5(e). In accordance with that rule, if the parties seek to seal specific documents, they must file an accompanying motion to seal that includes sufficient factual and legal authority to enable the Court to make "particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons." Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011)
60 MOTION for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 8/5/2011 (Buseck, Gary) (Entered: 07/15/2011)
61 Statement of Material Facts re 60 MOTION for Summary Judgment pursuant to Local Rule 56(a)1 filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
62 Statement of Material Facts re 60 MOTION for Summary Judgment Non−Adjudicative filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
63 Memorandum in Support re 60 MOTION for Summary Judgment filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
64 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Joanne Pedersen and Ann Meitzen filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
65 AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Gerald V. Passaro II filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit Salary Plan Statement Deferred Vested Benefits, # 2 Exhibit Salary Plan Calculation Statement, # 3 Exhibit Vanguard Letter 1−27−10, # 4 Exhibit ERISA Review Committee Letter 5−14−10, # 5 Exhibit Vanguard Letter 7−30−10)(Buseck, Gary) (Entered: 07/15/2011)
66 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Raquel Ardin and Lynda DeForge filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
67 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Janet Geller and Joanne Marquis filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
68 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Geraldine Artis and Suzanne Artis filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
69 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Bradley Kleinerman and James Gehre filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)

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70 Joint AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Damon Savoy and John Weiss filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011)
71 AFFIDAVIT re 60 MOTION for Summary Judgment Expert Affidavit Signed By Michael Lamb filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit CV, # 2 Exhibit Bibliography)(Buseck, Gary) (Entered: 07/15/2011)
72 AFFIDAVIT re 60 MOTION for Summary Judgment Expert Affidavit Signed By Gary Segura filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit CV, # 2 Exhibit Bibliography)(Buseck, Gary) (Entered: 07/15/2011)
73 AFFIDAVIT re 60 MOTION for Summary Judgment Expert Affidavit Signed By Letitia Anne Peplau filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit References, # 2 Exhibit CV)(Buseck, Gary) (Entered: 07/15/2011)
74 AFFIDAVIT re 60 MOTION for Summary Judgment Expert Affidavit Signed By George Chauncey filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit CV, # 2 Exhibit Bibliography)(Buseck, Gary) (Entered: 07/15/2011)
75 AFFIDAVIT re 60 MOTION for Summary Judgment Expert Affidavit Signed By Nancy F. Cott filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit CV, # 2 Exhibit Bibliography)(Buseck, Gary) (Entered: 07/15/2011)
76 AFFIDAVIT re 60 MOTION for Summary Judgment Signed By Gary D. Buseck filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit GAO Report 2004, # 2 Exhibit House Report 104−664, # 3 Exhibit GAO Report 1997, # 4 Exhibit Golinski Memorandum of Law, # 5 Exhibit CBO Report 2004, # 6 Exhibit BLAG Admission Responses 7−8−11, # 7 Exhibit BLAG Interrogatory Responses 7−8−11)(Buseck, Gary) (Entered: 07/15/2011)
77 NOTICE of Appearance by Vickie L Henry on behalf of Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss (Henry, Vickie) (Entered: 07/19/2011)
78 MOTION for Leave to File Excess Pages by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Dugan, Conor) (Entered: 08/08/2011)
79 ORDER granting 78 Motion for Leave to File Excess Pages. Signed by Judge Vanessa L. Bryant on 8/9/11. (Engel, J.) (Entered: 08/09/2011)
80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief by Bipartisan Legal Advisory Group of the U.S. House of Representatives.Responses due by 9/5/2011 (Attachments: # 1 Text of Proposed Order)(Kircher, Kerry) (Entered: 08/15/2011)
81 Memorandum in Support re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 08/15/2011)

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08/15/2011 08/15/2011
08/15/2011 08/15/2011 08/15/2011 08/22/2011 08/22/2011 08/25/2011
09/02/2011
09/09/2011
09/13/2011 09/14/2011

82 Memorandum in Opposition re 60 MOTION for Summary Judgment filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/15/2011)
83 AFFIDAVIT in opposition to 60 MOTION for Summary Judgment. Signed By Conor B. Dugan filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kircher, Kerry) Modified on 8/16/2011 to link to motion (Grady, B.). Modified on 8/19/2011 to link to underlining motion (Grady, B.). (Entered: 08/15/2011)
84 ENTERED IN ERROR . . . RESPONSE re 61 Statement of Material Facts, by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/16/2011 (Grady, B.). (Entered: 08/15/2011)
85 MOTION to Dismiss First Amended Complaint by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh.Responses due by 9/5/2011 (Littleton, Judson) (Entered: 08/15/2011)
86 Local Rule 56(a)2 Statement, re: 60 MOTION for Summary Judgment filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Grady, B.) (Entered: 08/16/2011)
87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" by Bipartisan Legal Advisory Group of the U.S. House of Representatives.Responses due by 9/12/2011 (Attachments: # 1 Text of Proposed Order)(Kircher, Kerry) (Entered: 08/22/2011)
88 Memorandum in Support re 87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 08/22/2011)
89 Memorandum in Opposition by the Plaintiffs re 87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) Modified on 8/26/2011 to remove text (Grady, B.). (Entered: 08/25/2011)
90 REPLY to Response to 87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kircher, Kerry) (Entered: 09/02/2011)
91 MOTION for Leave to File Excess Pages up to 65 pages and a Consolidated Brief in Opposition to the House Motion to Dismiss 80 and in Reply as to Plaintiffs' 60 Motion for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) Modified on 9/14/2011 − linked to appropriate motions (Gothers, M.). (Entered: 09/09/2011)
92 ORDER denying 91 Motion for Leave to File Excess Pages and to file a consolidated memorandum of law. Without reviewing the motion and memorandum to which the Plaintiff is responding, the Court cannot grant the motion to consolidate. Plaintiff is directed to file separate memoranda of law. Signed by Judge Vanessa L. Bryant on 9/13/11. (Hildebrand, J.) (Entered: 09/13/2011)
93 Docket Entry Correction re 91 MOTION for Leave to File Excess Pages up to 65 pages and a Consolidated Brief in Opposition to the House Motion to Dismiss and in Reply as to Plaintiffs' Motion for Summary Judgment modified: linked to both underlying motions #60 & #80. (Gothers, M.) (Entered: 09/14/2011)

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09/14/2011 09/14/2011 09/14/2011 09/14/2011 09/14/2011 09/14/2011 09/14/2011
09/14/2011 10/05/2011 10/05/2011

94 REPLY to Response to 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment Reply Memorandum re: Summary Judgment filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
95 Memorandum in Opposition to Motion to Dismiss re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
96 AFFIDAVIT re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment Expert Affidavit Signed By Letitia Anne Peplau filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
97 AFFIDAVIT re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment Supplemental Expert Affidavit Signed By Michael Lamb filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
98 RESPONSE re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment filed by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, United States Of America, United States Postal Service, John Walsh. (Littleton, Judson) (Entered: 09/14/2011)
99 AFFIDAVIT re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 60 MOTION for Summary Judgment Expert Affidavit Signed By Lisa M. Diamond filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
100 AFFIDAVIT re 60 MOTION for Summary Judgment, 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief Signed By Gary D. Buseck filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Attachments: # 1 Exhibit Peplau Deposition Excerpt, # 2 Exhibit Cott Deposition Excerpt, # 3 Exhibit Lamb Deposition Excerpt, # 4 Exhibit Chauncey Deposition Excerpt, # 5 Exhibit Windsor Plaintiff Rule 56.1 Statement, # 6 Exhibit Windsor − House Response to 56.1 Statement, # 7 Exhibit House Amended Admissions, # 8 Exhibit IRS Determination Letter to Artis, # 9 Exhibit Excerpt − IRS Publication 17 − 2009 ed, # 10 Exhibit Excerpt − IRS Publication 17 − 1995 ed, # 11 Exhibit IRS Information Letter 2001−0294)(Buseck, Gary) (Entered: 09/14/2011)
101 MOTION for Leave to File Excess Pages for a Reply Memorandum of 22 Pages in Support of Plaintiffs' Motion for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 09/14/2011)
102 REPLY to Response to 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A)(Kircher, Kerry) (Entered: 10/05/2011)
103 RESPONSE re 60 MOTION for Summary Judgment filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, #

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10/11/2011
02/24/2012
03/02/2012 03/02/2012 03/14/2012 06/20/2012 06/20/2012 06/22/2012 06/22/2012
06/25/2012 06/29/2012 07/03/2012 07/04/2012 07/31/2012

2 Exhibit B)(Kircher, Kerry) (Entered: 10/05/2011)
104 RESPONSE re 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief Plaintiffs' Sur−Reply in Opposition to Motion to Dismiss filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 10/11/2011)
105 ENTERED IN ERROR . . . Notice of Additional Authority re 60 MOTION for Summary Judgment filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Dowd, Karen) Modified on 3/2/2012 (Grady, B.). (Entered: 02/24/2012)
Docket Entry Correction: Document 105 Notice of Additional Authority − Entered in Error − docket entries must be in pleading format. (Grady, B.) (Entered: 03/02/2012)
106 Notice of Additional Authority re 60 MOTION for Summary Judgment filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Dowd, Karen) (Entered: 03/02/2012)
107 RESPONSE re 106 Notice of Additional Authority, re 60 MOTION for Summary Judgment by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Bartolomucci, H.) Modified on 3/15/2012 to link to motion (Grady, B.). Modified on 3/22/2012 to create association (Grady, B.). (Entered: 03/14/2012)
108 MOTION to Stay Proceedings by Bipartisan Legal Advisory Group of the U.S. House of Representatives.Responses due by 7/11/2012 (Attachments: # 1 Text of Proposed Order)(Kircher, Kerry) (Entered: 06/20/2012)
109 Memorandum in Support re 108 MOTION to Stay Proceedings filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) (Entered: 06/20/2012)
Set Deadlines as to 108 MOTION to Stay Proceedings. Responses due by 7/11/2012 (LaLone, L.) (Entered: 06/22/2012)
110 Memorandum in Opposition to Intervenor−Defendant's Motion to Stay Proceedings re 108 MOTION to Stay Proceedings filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 06/22/2012)
111 NOTICE by Bipartisan Legal Advisory Group of the U.S. House of Representatives re 110 Memorandum in Opposition to Motion, 109 Memorandum in Support of Motion (Kircher, Kerry) (Entered: 06/25/2012)
112 REPLY to Response to 108 MOTION to Stay Proceedings filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kircher, Kerry) (Entered: 06/29/2012)
113 RESPONSE re 108 MOTION to Stay Proceedings Sur−Reply of Plaintiffs filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/03/2012)
114 ORDER denying 108 Motion to Stay. See attached Order. Signed by Judge Vanessa L. Bryant on 7/4/12. (Hildebrand, J.) (Entered: 07/04/2012)
115 ORDER granting 87 Motion to Strike Plaintiffs' Separate Statement of Non−Adjudicative Facts to the extent that the content of a particular statement is not permissible expert testimony or material not properly the subject of judicial notice. BLAG acknowledges that the Court is free to review legislative facts and has included such facts in its opposition to Plaintiffs' motion for summary judgment. See 103 (BLAG Sur Reply to Summary Judgment at p. 1). The Court will therefore consider only the portions of Plaintiffs' Separate Statement which contain permissible expert testimony or material properly the subject of judicial notice such as legislative facts.

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07/31/2012 07/31/2012 08/02/2012

The Court will likewise consider the legislative facts BLAG has referenced. See Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1086 (2d Cir.1982) (stating that where there is no dispute as to the authenticity of materials relating to legislative history and judicial notice is limited to law, legislative facts, or factual matters that are incontrovertible, judicial notice is admissible), cert. denied, 474 U.S. 823, 106 S.Ct. 78, 88 L.Ed.2d 64 (1985). Signed by Judge Vanessa L. Bryant on 7/31/12. (Hildebrand, J.) (Entered: 07/31/2012)
116 ORDER granting 60 Motion for Summary Judgment; denying 80 , 85 Motions to Dismiss. See attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 7/31/12. (Hildebrand, J.) (Entered: 07/31/2012)
117 ORDER denying as moot 101 Motion for Leave to File Excess Pages. Signed by Judge Vanessa L. Bryant on 7/31/12. (Hildebrand, J.) (Entered: 07/31/2012)
118 JUDGMENT entered in favor of Ann Meitzen, Bradley Kleinerman, Damon Savoy, Gerald V. Passaro, II, Geraldine Artis, James Gehre, Janet Geller, Joanne Marquis, Joanne Pedersen, John Weiss, Lynda Deforge, Raquel Ardin, Suzanne Artis against Bipartisan Legal Advisory Group of the U.S. House of Representatives, Office of Personnel Management, United States Of America, United States Postal Service, Douglas H. Shulman, Eric H. Holder, Jr, Hilda L. Solis, John Walsh, John E. Potter, Michael J. Astrue, Timothy F. Geithner.

08/02/2012

For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms.html. Signed by Clerk on 8/2/12. (LaLone, L.) (Entered: 08/02/2012)
JUDICIAL PROCEEDINGS SURVEY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link:

08/17/2012 09/25/2012 09/25/2012

https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (LaLone, L.) (Entered: 09/07/2012)
119 NOTICE OF APPEAL as to 118 Judgment,, 116 Order on Motion for Summary Judgment, Order on Motion to Dismiss, by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh. (Littleton, Judson) (Entered: 08/17/2012)
120 ENTERED IN ERROR . . . Index to Record on Appeal by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh re 119 Notice of Appeal,. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Littleton, Judson) Modified on 9/25/2012 (Grady, B.). (Entered: 09/25/2012)
121 Index to Record on Appeal by Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, Hilda L. Solis, United States Of America, United States Postal Service, John Walsh re 119 Notice of Appeal, 114 Order on Motion to Stay, 66 Affidavit, 106 Notice of Additional Authority, 72 Affidavit, 89 Memorandum in Opposition to Motion, 113 Response, 94 Reply to Response to Motion, 67 Affidavit, 103 Response, 85 MOTION to Dismiss First Amended Complaint, 115 Order on Motion to Strike,,,, 70 Affidavit, 82 Memorandum in Opposition to Motion, 68 Affidavit, 108 MOTION to Stay Proceedings, 87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts", 112 Reply to Response to Motion, 73 Affidavit, 100 Affidavit,,, 116 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 46 Status Report, 107 Response, 39 Notice (Other), Notice (Other), 48 MOTION to Intervene for a Limited Purpose, 76

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09/26/2012 10/15/2012
07/11/2013 07/23/2013

Affidavit,, 69 Affidavit, 83 Affidavit, 90 Reply to Response to Motion, 1 Complaint, 88 Memorandum in Support of Motion, 81 Memorandum in Support of Motion, 64 Affidavit, 33 Amended Complaint, 98 Response, 109 Memorandum in Support of Motion, 60 MOTION for Summary Judgment, 99 Affidavit, 104 Response, 52 Reply to Response to Motion, 118 Judgment,, 63 Memorandum in Support of Motion, 62 Statement of Material Facts, 75 Affidavit, 110 Memorandum in Opposition to Motion, 71 Affidavit, 74 Affidavit, 50 Response, 97 Affidavit, 95 Memorandum in Opposition to Motion, 65 Affidavit,, 96 Affidavit, 102 Reply to Response to Motion, 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 86 Statement of Material Facts, 55 Order on Motion to Intervene,,, 61 Statement of Material Facts,. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Littleton, Judson) (Entered: 09/25/2012)
122 NOTICE OF APPEAL as to 118 Judgment,, 116 Order on Motion for Summary Judgment, Order on Motion to Dismiss, by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 09/26/2012)
123 Index to Record on Appeal by Bipartisan Legal Advisory Group of the U.S. House of Representatives re 122 Notice of Appeal, 114 Order on Motion to Stay, 66 Affidavit, 106 Notice of Additional Authority, 72 Affidavit, 89 Memorandum in Opposition to Motion, 113 Response, 94 Reply to Response to Motion, 67 Affidavit, 103 Response, 85 MOTION to Dismiss First Amended Complaint, 115 Order on Motion to Strike,,,, 70 Affidavit, 82 Memorandum in Opposition to Motion, 68 Affidavit, 108 MOTION to Stay Proceedings, 87 MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts" MOTION to Strike 62 Statement of Material Facts, Plaintiffs' "Separate Statement of Non−Adjudicative Facts", 112 Reply to Response to Motion, 73 Affidavit, 100 Affidavit,,, 116 Order on Motion for Summary Judgment, Order on Motion to Dismiss, 46 Status Report, 107 Response, 39 Notice (Other), Notice (Other), 48 MOTION to Intervene for a Limited Purpose, 76 Affidavit,, 69 Affidavit, 83 Affidavit, 90 Reply to Response to Motion, 1 Complaint, 88 Memorandum in Support of Motion, 119 Notice of Appeal, 81 Memorandum in Support of Motion, 64 Affidavit, 33 Amended Complaint, 98 Response, 109 Memorandum in Support of Motion, 60 MOTION for Summary Judgment, 99 Affidavit, 104 Response, 52 Reply to Response to Motion, 118 Judgment,, 63 Memorandum in Support of Motion, 62 Statement of Material Facts, 75 Affidavit, 110 Memorandum in Opposition to Motion, 71 Affidavit, 74 Affidavit, 50 Response, 97 Affidavit, 95 Memorandum in Opposition to Motion, 65 Affidavit,, 96 Affidavit, 102 Reply to Response to Motion, 80 MOTION to Dismiss First Amended Complaint for Declaratory and Injunctive Relief, 86 Statement of Material Facts, 55 Order on Motion to Intervene,,, 61 Statement of Material Facts,. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Kircher, Kerry) (Entered: 10/15/2012)
124 NOTICE of Appearance by Jean Lin on behalf of Michael J. Astrue, Timothy F. Geithner, Eric H. Holder, Jr, Office of Personnel Management, John E. Potter, Douglas H. Shulman, United States Of America, United States Postal Service, John Walsh (Lin, Jean) (Entered: 07/11/2013)
125 ORDER of USCA withdrawing 119 Notice of Appeal. The stipulation is "So Ordered". USCA Case Number 12−3273 (Grady, B.) (Entered: 07/24/2013)

 </s> No.
IN THE
Supreme Court of the United States
_________
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., and
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,

________

Respondents.

On Petition for a Writ of Certiorari before Judgment to the United States Court of Appeals for the Second Circuit
________

PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT ________

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

COUNSEL FOR PETITIONERS JOANNE PEDERSEN, ET AL.

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act defines “marriage” for purposes of all federal statutes, regulations, and agency interpretations as the union of one man and one woman and defines “spouse” as a husband or wife of someone of the opposite sex. 1 U.S.C. § 7. As a result, with respect to more than 1,100 federal statutes, lawfully married same-sex couples are denied the benefits and responsibilities accorded to lawfully married opposite-sex couples.
The question presented is:
Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

ii
PARTIES TO THE PROCEEDING
The Petitioners are Joanne Pedersen and Ann Meitzen, Gerald V. Passaro II, Lynda DeForge and Raquel Ardin, Janet Geller and Joanne Marquis, Suzanne and Geraldine Artis, Bradley Kleinerman and James Gehre, and Damon Savoy and John Weiss. The Petitioners were the Plaintiffs in the District Court, and they are the Appellees in the Court of Appeals.
The Office of Personnel Management; Timothy F. Geithner, Secretary of the Treasury; Hilda L. Solis, Secretary of Labor; Michael J. Astrue, Commissioner of the Social Security Administration; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Douglas H. Shulman, Commissioner of Internal Revenue; Eric H. Holder, Jr., Attorney General; John Walsh, Acting Comptroller of the Currency; and the United States of America were defendants in the District Court and are Appellants in the Court of Appeals.
The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) was the Intervenor-Defendant in the District Court and is the Intervenor-Appellant in the Court of Appeals.

iii

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING ............................ii

TABLE OF AUTHORITIES........................................ v

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................... 2

STATEMENT OF THE CASE .................................... 3

A. DOMA’S ENACTMENT ................................... 3

B. PETITIONERS SUFFER FROM THEIR DISPARATE TREATMENT UNDER DOMA.................................................7

C. PROCEDURAL BACKGROUND AND THE OPINION BELOW ................................ 14

REASONS FOR GRANTING THE WRIT................ 24

I. THIS CASE RAISES QUESTIONS OF NATIONAL IMPORTANCE THAT ARE RIPE FOR REVIEW. ........................................... 24

II. THE EXCEPTIONAL IMPORTANCE OF

THE QUESTION PRESENTED AND THE

CIRCUMSTANCES

OF

THIS

PARTICULAR

CASE

WARRANT

GRANTING CERTIORARI BEFORE

JUDGMENT......................................................... 27

CONCLUSION .......................................................... 32

iv
APPENDIX A – Memorandum Opinion, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. July 31, 2012) ............................................ 1a
APPENDIX B – Judgment, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10cv-1750 (D. Conn. Aug. 2, 2012) ...................... 118a
APPENDIX C – Notice of Appeal, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. Aug. 17 2012) ...... 120a

v
TABLE OF AUTHORITIES
CASES Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...........4-5 Baker v. Nelson, 409 U.S. 810 (1972)................... 15 Board of Trustees of Alabama State University v. Garrett, 531 U.S. 356 (2001)................................................................ 31 Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)........................................... 17, 32 De Sylva v. Ballentine, 351 U.S. 570 (1956) .......... 4 Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979) .................................................... 4 Frontiero v. Richardson, 411 U.S. 677 (1973)................................................................ 19 Lawrence v. Texas, 539 U.S. 558 (2003) .............. 17 Massachusetts v. DHHS, 682 F.3d 1 (1st Cir. 2012).................................................... 24, 29 Plyler v. Doe, 457 U.S. 202 (1982) .................. 16, 32 United States v. Virginia, 518 U.S. 515 (1996)................................................................ 17 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................... 32
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. V .............................................. 2
18 U.S.C. § 2333 ...................................................... 7
28 U.S.C. § 1254 .................................................... 23

vi
28 U.S.C. § 1254(1).................................................. 2
28 U.S.C. § 1291 .................................................... 23
28 U.S.C. § 2101(e).................................................. 2
Defense of Marriage Act, Pub. L. No. 104199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ....................................................... 2, 3
Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951).................................................................. 7
LEGISLATIVE MATERIALS
142 Cong. Rec. 16,799 (1996).................................. 6
142 Cong. Rec. 16,972 (1996).................................. 6
142 Cong. Rec. 17,074 (1996).................................. 6
142 Cong. Rec. 17,082 (1996).................................. 6
142 Cong. Rec. 17,089 (1996)...............................5-6
142 Cong. Rec. 22,334 (1996).................................. 6 H.R. Rep. No. 104-664 (1996), reprinted in
1996 U.S.C.C.A.N. 2905 .......................... 5, 7, 31
OTHER AUTHORITIES Nancy Cott, Public Vows (2000) ............................. 3 Eugene Gressmen et al., Supreme Court Practice § 2.4 (9th ed. 2007) ....................... 23-24
I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990) ................................................................... 4
Petition for a Writ of Certiorari, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 ............................................... 25, 26

vii
Petition for a Writ of Certiorari, DHHS v. Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 ................................ 25
Petition for a Writ of Certiorari, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 ............................................ 28
U.S. General Accountability Office, GAO04-353R (2004) ................................................... 7
U.S. General Accountability Office, GAO/OGC-97-16 (1997) ..................................... 7

In the Supreme Court of the United States
_________
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
Respondents, and ________ BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondent. __________
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT __________
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
Joanne Pedersen et al., the Plaintiffs in the District Court and Appellees in the Court of Appeals, respectfully petition for a writ of certiorari before judgment in a case pending on appeal to the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the District Court for the District of Connecticut granting Petitioners’ motion for summary judgment and denying BLAG’s motion to

2
dismiss, Pet. App. 1a - 117a, is published at 2012 WL 3113883, __ F. Supp. 2d __.
JURISDICTION
The judgment of the District Court was entered on August 2, 2012. Pet. App. 119a. A Notice of Appeal was filed on August 17, 2012. Pet. App. 120a121a. The case is docketed in the Court of Appeals for the Second Circuit as No. 12-3273. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) and 28 U.S.C. § 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment provides: “No person shall *** be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), 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.

3
STATEMENT OF THE CASE
Joanne Pedersen and the other 12 Petitioners are all lawfully married or widowed men and women who exercise or have exercised all of the rights and discharged all of the responsibilities of married people in the respective states of their marriages – Connecticut, Vermont or New Hampshire. Their marriages, however, are denied any federal recognition by Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), which for the first and only time in history establishes a federal definition of “marriage” and “spouse.” While Connecticut, Vermont and New Hampshire all treat the Petitioners and all other married same-sex couples identically to their married opposite-sex counterparts, DOMA takes the unitary class of married persons in these three states and divides it in two: those who are married for federal purposes and those whose marriages do not exist for any federal purpose.
A. DOMA’s Enactment
From the founding of this country until DOMA’s enactment in 1996, the states governed marriage. State laws have always borne differences as to the age of consent, the permissibility of interracial marriages, permissible degrees of consanguinity, the availability of divorce, and the recognition of common law marriages. Such conflicts sometimes led to “explosive” debates among the States, see, e.g., Nancy Cott, Public Vows 163 (2000), but the federal government never before inserted itself into the

4
debate by defining any dimension of marital eligibility for all federal purposes.
Instead, the federal government looked, as it always had, to the relevant state’s definition of marriage: a couple that was married under the law of the state was married under the laws of the federal government. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“The scope of a federal right is . . . 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 when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.”).
The federal government maintained its deference to state law notwithstanding wide diversity in the benefits available to couples. As the Fourth Circuit explained in Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979), the diversity:
produces some inequality in taxation, but it illustrates the deference Congress has demonstrated for state laws in this area and its attempts to insure that, in the application of federal tax laws, taxpayers will be treated in their intimate and personal relationships as the state in which they reside treats them.
Id. at 191, accord I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990).
In 1996, Congress disrupted this centuries-old status quo by passing DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin,

5
852 P.2d 44 (Haw. 1993), which raised the possibility that same-sex-couples could begin marrying in the near future. The House Judiciary Committee’s Report on DOMA 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.” H.R. Rep. No. 104-664 at 10-11 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15.
The House Report on DOMA acknowledged that “[t]he determination of who may marry in the United States is uniquely a function of state law,” id. at 3, reprinted in 1996 U.S.C.C.A.N. at 2907, but stating that the Committee was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’” id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916, it claimed Congressional interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging responsible child-rearing and procreation,” conserving scarce resources, and reflecting Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12, 13, 16, reprinted in 1996 U.S.C.C.A.N. at 2916, 2917, 2920 (footnote omitted).
The remarks of Representative Hyde, thenChairman of the House Judiciary Committee, were blunt but typical: “Most people do not approve of homosexual conduct . . . and they express their disapprobation through the law . . . . It is . . . the only way possible to express this disapprobation.” 142

6
Cong. Rec. 17,089 (1996). In the floor debate on DOMA, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack on God’s principles.” Id. at 16,972 (statement of Rep. Coburn); id. at 17,074 (statement of Rep. Buyer); id. at 17,082 (statement of Rep. Smith). They argued that marriage by gay men and lesbians might be “the final blow to the American family.” Id. at 16,799 (statement of Rep. Largent). Senator Helms stated:
[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.
Id. at 22,334.
Although DOMA amended the eligibility criteria for a vast number of benefits, rights, and privileges dependent upon marital status, the relevant Congressional committees did not engage in any meaningful examination of the scope or effect of the law. Neither chamber of Congress heard testimony from economists, historians, sociologists or specialists in child welfare. Congress did not solicit relevant agency heads nor endeavor in any other way to understand the scope of the Act. Indeed, the

7
House Report characterized Section 3 as a “narrow federal requirement.” H.R. Rep. No. 104-664 at 30, reprinted in 1996 U.S.C.C.A.N. at 2935.
But DOMA neither was nor is “narrow.” Since its passage, DOMA has implicated more than 1,100 federal statutory provisions, extending from Social Security to taxation and health care, from employee benefits and spousal privileges in federal court to terrorism victim recovery. See, e.g., U.S. General Accountability Office, GAO-04-353R (2004); U.S. General Accountability Office, GAO/OGC-97-16 (1997); 18 U.S.C.§ 2333.
Not surprisingly, defining a term for the entirety of the United States Code is uncommon, and at the time of DOMA, no new definitions had been added to the Dictionary Act, and the existing definitions had not been amended, for nearly half a century. See Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951) (substituting “used” for “use” in fourth paragraph of 1 U.S.C. § 1).
B. Petitioners Suffer From their Disparate Treatment Under DOMA
DOMA compels all federal agencies to disregard the lawful marriages entered into by each of the Petitioners, who married after long and dedicated relationships to each other. As a class-based enactment, DOMA is a federal declaration that the Petitioners’ marriages are not real marriages and merit no respect under any federal law. This causes “a great deal of stress and worry,” is “extremely disheartening” and forces individuals to “disregard [their own] marital status.” It makes the Petitioners

8

feel “singled out for disrespect” and “like second-class citizens” with marriage that are “not respected and valued,” and that don’t “mean what [they] should, or what other people’s marriages mean.” It “artificially divides [their] family” and conveys to their children “that our marriage and family and don’t count” in the eyes of their government.1

For the thirteen Petitioners, there is no dispute

that DOMA denies them equal access to particular

federal programs.2

DOMA concretely and

continuously harms them and their children. The

record reveals the following harms:

Joanne Pedersen and Ann Meitzen: Joanne Pedersen, a retired civilian employee of the Department of the Navy, Office of Naval Intelligence with over 30 years of service, and Ann Meitzen, a supervisor for a case management agency for the elderly and disabled, have been a committed couple since 1998 and married in Connecticut on December 22, 2008, their 10th Anniversary. Joanne sought to add Ann to her Federal Employee Health Benefit (FEHB) insurance coverage, but her request was

1 The quotations are taken from unrebutted Affidavits from the Plaintiffs (now Petitioners) in Support of their Motion for Summary Judgment. Other further undisputed facts are drawn from the Amended Complaint.
2See nn. 3-6, 8-9 and 11 infra. Although intervenors also advanced in the District Court a construction of the tax code provision on joint filing that, like DOMA, would deny a “married” filing status only to married same sex couples, the District Court correctly rejected their alternate statutory argument. See Pet. App. 20a-24a.

9
denied because of DOMA.3 Ann suffers from a chronic lung condition. She and Joanne were harmed by DOMA because, without access to Joanne’s FEHB coverage, Ann had to delay her retirement because of the high cost of private insurance. This impacted Ann’s health and their quality of life.
Gerald V. Passaro II: Gerald (“Gerry”) V. Passaro II, a disabled hairdresser, is the surviving spouse of Thomas (“Tom”) Buckholz, who was a senior chemist at The Bayer Corporation (Bayer) prior to his untimely death in January 2009 at the age of 47. At that point, Gerry and Tom had been a committed couple for over 13 years and had married in Connecticut on November 26, 2008. Gerry had been Tom’s sole caretaker, mostly at home, during the 18 months of Tom’s struggle with lymphoma. When Tom died, Gerry learned from Bayer that, because of DOMA, although Tom was fully vested in Bayer’s defined benefit pension plan, he was not entitled to any pension benefit, including the Qualified Preretirement Survivor Annuity (QPSA) otherwise mandated by ERISA for surviving spouses. In addition, Gerry applied for, and was denied, the lump-sum Social Security death benefit of $255 on
3 Joanne first sought FEHB coverage for her wife in 2009 within the 60-day period in which to change enrollment due to marriage. That request was denied. When she attempted to reapply for benefits in 2010 during open enrollment season, the online system would not accept her entries, and agency staff confirmed that Ann was not eligible as Joanne was of the same sex.

10
the ground that “your marriage does not meet the requirements under Federal law for payment ….”4
Raquel Ardin and Lynda DeForge: Raquel Ardin, a Postal Service worker for 25 years and now on disability retirement since 2005 as a result of a neck injury sustained during her military service in the U.S. Navy, and Lynda DeForge, a current Postal Service employee of more than 25 years, have been a committed couple for over 30 years since 1977 and married in Vermont since September 7, 2009. Because of degenerative arthritis in her neck, Raquel needs regular, quarterly treatments in Connecticut for which Lynda’s presence is required. Lynda is eligible under the Federal Medical Leave Act (FMLA) and, therefore, applied for FMLA leave one day every three months to care for her spouse during these treatments. The Postal Service denied that leave because of DOMA.5 In addition, Raquel and Lynda are each individually enrolled in the FEHB program for “Self Only” coverage. Lynda has sought, during open enrollment, to change her status from “Self Only” to “Self and Family” to include Raquel as it would save the couple money to be covered under a
4 Gerry received two denial letters from the Social Security Administration on January 19, 2011 and March 22, 2011, respectively.
5 Lynda received a letter from the Postal Service, dated May 13, 2010, stating that her request for leave was denied “as same sex marriage is not recognized by Federal law under the Defense of Marriage Act.”

11
single plan. The request was denied because of DOMA.6
Janet Geller and Joanne Marquis: Janet Geller and Joanne Marquis are both retired New Hampshire school teachers, who together taught for over 68 years. They have been a committed couple for well over 30 years, since 1979; and they were married in New Hampshire on May 3, 2010. Both Janet and Joanne receive a pension through the New Hampshire Retirement System (NHRS). However, because Joanne had over 30 years of public school service, she is qualified for a medical cost supplement – to help pay for the Medicare Part B supplemental coverage – for herself and her spouse.7 Nonetheless, when Joanne applied for the spousal benefit ($375.66/month for Janet) following their marriage, the request was denied because of DOMA.8
Geraldine and Suzanne Artis: Geraldine Artis, currently a student pursuing a new career in counseling, and Suzanne Artis, a librarian, have shared a committed partnership for 18 years and were married in Connecticut on July 11, 2009.
6 On November 8, 2010, Lynda sought to apply using the online PostalEASE system, which advised her that “same sex spouses are not considered eligible family members under FEHB.”
7 Janet is not eligible for the benefit because she does not have the requisite 30 years of service in the public sector.
8 The NHRS advised Joanne that DOMA controls the meaning of spouse under the Internal Revenue Code and that to act contrary to the Code would cause the NHRS to lose its tax qualified status.

12
Geraldine and Suzanne are raising three boys – one now 14 and twins who are 12. Despite being married for the 2009 tax year, Geraldine and Suzanne were forbidden by DOMA from filing their federal income tax return as Married Filing Jointly. Instead, they have been required by DOMA to file as Head of Household (Suzanne) and Single (Geraldine). Had they been permitted to file as the married couple that they are, they would have paid $1,465 less in federal income tax for 2009.9 The IRS formally denied their request by letter dated January 19, 2011, noting that “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.”
Bradley Kleinerman and James Flint Gehre: Bradley (“Brad”) Kleinerman, a human resources director for CIGNA Healthcare, and James Flint Gehre (“Flint”), a stay-at-home parent, have been a committed couple for more than 20 years since 1991. They married on the 18th Anniversary on March 6, 2009 in their home state of Connecticut. Brad and Flint have three sons – ages 21, 20 and 11. They too
9 For the tax year 2009, Geraldine and Suzanne submitted to the IRS an amended federal income tax return on IRS Form 1040X, Amended U.S. Individual Income Tax Return, with requests for refunds representing the difference between what the couple had paid as taxes and what the couple would have paid as joint filers. With that filing, they attached a Form 8275 Disclosure Statement and a Form 8275-R, Regulation Disclosure Statement to explain the changes to their earlier filed federal income tax returns. As a precondition to filing suit, each of the other Petitioners with tax-based harms took these same steps for the tax year at issue for them.

13
have been required to pay more in federal income tax for tax year 2009 because DOMA forbids them from filing as Married Filing Jointly. Instead they paid an additional $2,085 in federal income tax 2009 (and substantially more in 2010) because Brad could only file as Head of Household.10
Damon Savoy and John Weiss: Damon (“Jerry”) Savoy, an attorney with the Office of the Comptroller of the Currency (OCC) for 20 years, and John Weiss, an interior designer but currently a full-time parent, have been in a committed relationship for 13 years and married in their home state of Connecticut on October 9, 2010. They are raising three adopted children (now ages 13, 11 and 3). Jerry has an FEHB health insurance Self and Family plan that covers himself and the couple’s three children. When John’s COBRA coverage from his prior employment expired in July 2010, he had difficulty obtaining insurance on the private market because of his preexisting condition of diabetes. Following their marriage, in November 2010, Jerry sought to add John to his existing Self and Family plan. That request was denied because of DOMA,11 leaving John in the private insurance market where he has been paying at least $449 per month for health insurance.
10 Flint had no income in 2009 and thus was not required to file any federal return as an individual.
11 Jerry received his first denial from the Anthem Blue Cross Blue Shield representative. Denial was confirmed by the Human Resources Department of the OCC, which explained that coverage is governed by OPM rules which reference DOMA in determining eligible family members.

14
C. Procedural Background And The Opinion Below
The Petitioners filed their Complaint in the District Court of Connecticut on November 9, 2010, alleging that DOMA’s discrimination among married couples violates the equal protection guarantee of the Fifth Amendment to the Constitution. Pedersen v. Office of Personnel Management, et al., 3:10-cv-1750 (VLB), Dkt. No. 1.12
On February 23, 2011, the President and Attorney General notified Congress (and subsequently the District Court on February 25, 2011, see Dkt. No. 39) of their conclusion that DOMA is unconstitutional and violates the equal protection guarantee of the Fifth Amendment. See Dkt. No. 39. The Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) subsequently moved on April 26, 2011 to intervene for a limited purpose, Dkt. No. 48, and the District Court granted that motion “to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. § 7” on May 27, 2011. Dkt. No. 55.
Following discovery, Petitioners moved for summary judgment with supporting plaintiff, expert and counsel affidavits on July 15, 2011, Dkt. Nos. 6076; and BLAG moved to dismiss, Dkt. Nos. 80-83.13 With subsequent opposing, reply and surreply
12 A First Amended Complaint was filed on January 14, 2011. Dkt. No. 33.
13 The Federal Defendants also filed a Motion to Dismiss. Dkt. No. 85.

15
memoranda of law and supplemental affidavits, Dkt. Nos. 94-100 and 102-104, briefing was concluded on dispositive motions; and the matter was submitted to the court for decision.
The district court issued its decision on July 31, 2012, granting the motion for summary judgment, denying BLAG’s motion to dismiss, and holding that DOMA violates the Fifth Amendment. Pet. App. 1a117a. After concluding that “classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny,” the court found it unnecessary to apply such scrutiny to DOMA, concluding that “it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.” Id. at 86a. The court concluded that, “having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision.” Id. at 117a.
In analyzing the Petitioners’ Equal Protection claim, Judge Bryant began with the question of the appropriate level of scrutiny.14 To BLAG’s argument
14 As a preliminary matter, the court rejected BLAG’s argument that the constitutionality of DOMA had already been decided by Baker v. Nelson, 409 U.S. 810 (1972), correctly noting that Baker is, by definition, of limited precedential value and did not address the same question as presented in the current litigation. Pet. App. 24a - 27a. Specifically, the court noted that this case involves neither the right of states to authorize marriages of same-sex couples nor whether there is a

16
that it would be a “radical step” to find sexual orientation a suspect classification when this Court has yet to reach such a holding and several Courts of Appeals have held that it is not, the court correctly noted that the question is open in the Second Circuit and has yet to be resolved by this Court. Id. at 32a33a.
Furthermore, while acknowledging reason for restraint in identifying new suspect classifications, the court noted that, at the same time, the Equal Protection Clause serves to restrain legislative action that is “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Id. at 38a (quoting Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (internal quotation marks omitted)). To that end, a court “must not be tempted to tie the conception of judicial restraint to historic notions of equality.” Id. at 39a. Given the state of the law and the import of equal protection guarantees, the court saw its duty to “meaningfully assess” whether “sexual orientation constitutes a suspect or quasi-suspect class.” Id.
The court then engaged in what is certainly the most comprehensive analysis yet undertaken by a federal court in a DOMA case as to the factors variously assessed by this Court on the question in the context of a detailed record and sustained argument by the parties. Id. at 39a-86a.
fundamental right to marry where, as here, the Petitioners were all validly married by their home states. Id. at 26a-27a.

17
As the court noted, this Court has put its greatest emphasis on two factors: (1) whether a group has suffered a history of invidious discrimination; and (2) whether the characteristics that distinguish the group’s members bear no relation to their ability to contribute to society. Id. at 32a. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985); United States v. Virginia, 518 U.S. 515, 531-32 (1996).
This court has previously recognized that gay men and lesbians have historically been subject to discrimination. Lawrence v. Texas, 539 U.S. 558, 571 (2003) (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral”). Nonetheless, the court below was careful to assess BLAG’s argument to the contrary. To BLAG’s argument that the history of discrimination is the “relatively short-lived” product of the twentieth century, the court examined the extensive evidence in the record and concluded:
the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can be seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
…

18
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination.
Id. at 43a, 49a.
The court below also explained, in detail, why
Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.
Id. at 53a.
Therefore, the court determined that this factor “weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.” Id.
Recognizing that whether a characteristic is “defining or immutable” is not a necessary or essential factor for this Court in triggering heightened scrutiny, the court below nonetheless carefully examined the law, the record and the arguments on this issue, id. at 54a-69a, concluding that Ninth Circuit precedent on immutability was:

19
persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom.
Id. at 69a.
Turning to the last possible, but non-essential, factor – minority status or lack of political power – the court below noted two fundamental points: (1) there is no dispute “that gay men and lesbians are both nationally and locally a minority”; and (2) there is no requirement that the group have a “total lack of political power.”15 Id. at 71a, 73a-74a.
15 The district court noted that this factor gets less weight given that gender is quasi-suspect while the group is neither a minority nor powerless. See Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (acknowledging that “women do not constitute a small and powerless minority”). Pet. App. at 74a.

20
Recognizing that the proper standard is whether discrimination against the group is unlikely to be rectified soon by legislative means and that “effecting widespread change through the majoritarian process will be onerous,” Id. at 75a, the court rejected all of BLAG’s arguments that gay people are politically powerful, noting that the examples BLAG supplied were limited and anecdotal.
Ultimately, the court concluded, while gay men and lesbians have achieved “modest successes,” they still face “pervasive discrimination in the political arena” and lack meaningful political power. Id. at 83a.
Based on this extensive analysis, the court found that sexual orientation classifications are entitled to heightened judicial scrutiny.
Nonetheless, since this Court has been able to resolve past cases involving sexual orientation discrimination applying rational basis review, the district court analyzed DOMA under a traditional rational basis review standard. Id. 84a-86a.
Again, the court below conducted a thorough analysis of every rationale offered in support of DOMA – whether articulated by Congress in 1996 or developed post hoc in BLAG’s defense of the statute.
First, both Congress and BLAG put forth the proposition that DOMA is justified by an interest in maintaining “traditional marriage” and the link between marriage and the bearing and raising of children. Id. at 90a-91a. The court carefully unpacked claims by BLAG based on the experience

21
of Scandinavian countries and demonstrated that there is no support for any rational connection between denying federal benefits to married samesex couples and the objective of discouraging extramarital procreation. Id. at 94a-96a. In addition, the court observed that DOMA has no impact on the ability of same-sex couples to have and rear children, while inflicting “significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections.” Id. at 96a-98a.
Second, as to the goal of ensuring that children have parents of both sexes, the court found DOMA both too narrow and too broad to be rationally related to this goal since childless different-sex couples qualify for federal marital benefits while DOMA reaches many laws unrelated to rearing children. Id. at 101a-102a. Moreover, DOMA does not in any way impede same-sex couples from having and raising children; and if the goal is to discourage same-sex couples from doing so, serious constitutional questions are raised regarding the burdening of a protected fundamental right. Id. at 102a-103a.
Third, as to defending traditional notions of morality, beyond noting, as have other courts, that an effort to reinforce principles of morality cannot withstand rational basis review in light of Lawrence, the court noted that there is no uniform position in the United States today on the morality of marriage for same-sex couples such that to uphold DOMA on morality grounds alone would “fly in the face of the

22
fundamental principles of religious freedom and liberty” of our country. Id. at 104a-106a.
Fourth, as to the asserted objective of preserving government resources, the court noted that the only evidence in the record demonstrated that there was no basis in reality for this argument. Id. at 106a108a. In addition, the court applied settled law from this Court that
“more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Id. at 108a.
Finally, the court rejected BLAG’s justifications of “uniformity” and “caution.” As to caution, the court wrote:
Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see DKT. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to

23
withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.
Id. at 114a.16
As to claimed interests in uniformity, consistency and ease of administration of federal law, the court held that the justifications were not rational as DOMA: (1) adds a new element of complexity where previously the only question was whether a couple was “validly married under the laws of a state”; and (2) creates inconsistency in the distribution of federal marital benefits by excluding one category of marriages.17 Id. at 114a-116a.
The government defendants have filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. Pet. App. 120a-121a. The court of appeals has jurisdiction pursuant to 28 U.S.C. § 1291. The appeal was docketed as No. 123273.
This case is, therefore, “in the court[] of appeals” within the meaning of 28 U.S.C. § 1254. See Eugene
16 The court also found that caution is “simply a modified articulation” of the justification of tradition that the court had already rejected as insufficient. Pet. App. at 115a.
17 The court also addressed the asserted Congressional interest in protecting state sovereignty, correctly noting that that interest was only relevant to Section 2 of DOMA, which is not in issue in this litigation. Pet. App. at 109a-112a.

24
Gressmen et al., Supreme Court Practice § 2.4, at 8384 (9th ed. 2007).
REASONS FOR GRANTING THE WRIT
I. This Case Raises Questions Of National Importance That Are Ripe For Review.
This case raises questions of national importance. The denial of federal recognition of marriages mandated by section 3 of DOMA “affects a thousand or more generic cross-references to marriage in myriad federal laws.” Massachusetts v. DHHS, 682 F.3d 1, 6 (1st Cir. 2012). More than 100,000 samesex married couples are disadvantaged; and the states “that choose to legalize same-sex marriage” also suffer “potentially serious adverse consequences.” Id. 6 and n.3.
Therefore, although the Petitioners agree with the district court’s decision in this case that DOMA is unconstitutional, the Petitioners respectfully request that the Court grant this petition for review in order that the question of the constitutionality of DOMA may be authoritatively decided by this Court.
There are a number of reasons why review is appropriate at this time. First, as the Federal Defendants have noted in seeking review in this Court of the First Circuit’s decision in Massachusetts v. DHHS where DOMA has been held unconstitutional:
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 has yet passed on the

25
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 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); Robin 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).
Petition for a Writ of Certiorari at 13-14, DHHS v. Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 (“DOJ Pet.”).18
18 BLAG makes the identical point in its petition for review of the First Circuit’s decision. Petition for a Writ of Certiorari at

26
For this reason alone, the arguments for a grant of review in this case are strong. Second, and in addition, review is appropriate now as there is a great practical need for an authoritative decision from this Court. As BLAG has noted, there have been conflicting decisions on DOMA’s constitutionality in various federal courts throughout the country, and additional DOMA challenges are pending. BLAG Pet. 19-21.
Moreover, again as noted by BLAG, while the Administration is not defending DOMA, it is continuing to enforce the statute, with the result that litigation over DOMA’s constitutionality continues to develop throughout the country as cases arising out of the enforcement of the statute continue to recur. BLAG Pet. 17.
Third, as noted in the Statement above, each of the Petitioners demonstrates existing and ongoing economic harms as well as other burdens on their valid and existing marriages. Any continued delay in the resolution of the clear constitutional question presented by this case and this petition for review only exacerbates those harms unnecessarily for these Petitioners and for all other legally married same-sex couples throughout the country. Moreover, continued delay only continues the considerable difficulties experienced by state and local governments and private businesses that are compelled to treat married same-sex couples differently from other married couples in the myriad
17-18, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 (“BLAG Pet.”).

27
circumstances that arise in the course of day-to-day life.
Finally, as multiple courts have recently recognized, there are compelling arguments supporting the view the Congress overstepped its constitutional bounds when it decided for the first time to deny all recognition to a single class of statesanctioned marriages. This Court should grant review to affirm that Section 3 of DOMA violates the guarantees of equal protection secured by the Fifth Amendment.
II. The Exceptional Importance of the Question Presented and the Circumstances of this Particular Case Warrant Granting Certiorari Before Judgment.
As the Federal Defendants have noted in seeking certiorari before judgment in another DOMA challenge pending in a court of appeals,
Under this Court’s rules, a petition for a writ of certiorari before judgment in a case pending in a court of appeals will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This Court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions. See, e.g., United States v. Fanfan, 543 U.S. 220, 229 (2005)

28

(constitutionality of mandatory applications of

the United States Sentencing Guidelines);

Gratz v. Bollinger, 539 U.S. 244, 259-60 (2003)

(constitutionality

of

race-conscious

undergraduate admissions program);

Mistretta v. United States, 488 U.S. 361, 362,

371 (1989) (constitutionality of federal

Sentencing Guidelines); Dames & Moore v.

Regan, 453 U.S. 654, 667-668 (1981) (validity

of Iran hostage agreement); United States v.

Nixon, 418 U.S. 683, 686-687 (1974) (validity

of subpoena to the President); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584

(1952) (validity of the President’s steel seizure

order); Ex parte Quirin, 317 U.S. 1, 19-20

(1942) (validity of President’s assignment to a

military tribunal of jurisdiction over the trial

of belligerent saboteurs). See generally James

Lindgren & William R. Marshall, The

Supreme Court’s Extraordinary Power to

Grant Certiorari Before Judgment in the

Court of Appeals, 1986 Sup. Ct. Rev. 259.

Petition for a Writ of Certiorari at 14, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 (“DOJ Golinski Pet.”).

For the reasons stated in Section I, above, the question presented here is one “of exceptional public importance” that “call[s] for definitive and timely resolution by this Court” such that “the petition for a writ of certiorari before judgment in this case should be granted.” DOJ Golinksi Pet. 13-14.

29
In addition, this particular case is an exceptionally good vehicle for this Court’s review. First, the Petitioners in this case have been disadvantaged by DOMA in a wide variety of different ways that demonstrate the breadth of DOMA’s impact on a range of important, large federal programs (e.g., federal income tax, federal employee and retiree workplace benefits, and Social Security benefits) and important federal statutes (e.g., ERISA and FMLA). See Massachusetts v. DHHS, 682 F.3d at 11 (“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”). DOMA is not a narrow statute that discriminates against gay men and lesbians in discrete contexts, but rather a broadbased enactment whose effects pervade the entire U.S. Code. Because they have been disadvantaged in so many different ways, the Petitioners in this case best represent the range of DOMA’s effects on married gay men and lesbians.
Moreover, there are no collateral or procedural issues or obstacles of any kind in this case; all the harms caused to the Petitioners are clearly and solely the consequence of the application of DOMA; and, as such, the question of the constitutionality of DOMA as a matter of equal protection guarantees is squarely presented for review.19
19 As discussed in note 2 supra, although BLAG attempted to argue below that the tax code would independently operate to

30
Second, in reviewing the constitutionality of DOMA, this Court should address the proper standard of review for classification based on sexual orientation and, in particular, whether heightened scrutiny applies to such classifications.
This Court has not decided what level of scrutiny applies to laws that discriminate on the basis of sexual orientation. The Second Circuit has also not ruled on the question. As a result, the district court, as noted above, recognized a duty, in light of the state of the law and the import of equal protection guarantees, to meaningfully assess whether sexual orientation is a suspect or quasi-suspect class. Pet. App. 38a-39a. Based upon the most complete record yet assembled in a DOMA case raising the question, as well as full briefing by the parties, the court below engaged in the most thorough review by any federal court to date in a DOMA case as to the proper analysis, under this Court’s guiding precedents, of the question of the proper standard of review for sexual orientation classifications. See id. at 39a-86a.
As a consequence, this Court can address the question of the standard of review in this case with confidence that the issue has been fully and exhaustively aired in preparation for this Court’s resolution.
have the same effects as DOMA on some of the Petitioners, the District Court rejected BLAG’s construction of the statute. See Pet. App. 20a-24a. And in any event, BLAG’s statutory argument would not prevent the constitutionality of DOMA from being squarely presented in this case, due to the large number of Petitioners disadvantaged by DOMA in other ways.

31
Third, as described above, the court below also engaged in the most thorough review to date of every conceivable rationale put forth in support of DOMA – whether advanced at the time of enactment in 1996 by Congress or as developed post hoc by BLAG in the current plethora of cases challenging DOMA. The district court articulated each and every such asserted rationale and analyzed each and every argument put forth in support of, and opposition to, those justifications. Id. at 86a-117a. It concluded that there is no rational justification for the federal government not to recognize valid state marriage, just because the married couple is a same-sex couple. Again, as a result, this Court could not have a more complete record to assess the merits of the justifications asserted in defense of DOMA.
The lack of any rational explanation for DOMA leads to the conclusion that Congress intended DOMA to do exactly what Congress said it intended to do – to reflect “moral disapproval of homosexuality.” H. Rep. No. 104-664 at 15-16, reprinted in 1996 U.S.C.C.A.N. at 2919-20. This purpose is clear on the face of the House Report and the Congressional Record. It is also the only explanation for DOMA that makes any sense. Whether animated by moral disapproval toward gay men and lesbians, “insensitivity,” or an instinctive reaction against those who “appear[ed] to be different,” such impermissible prejudices are not a valid purpose for a law. See Board of Trustees of Ala. State Univ. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J. and O’Connor, J., concurring). Congress enacted a statute whose object was to

32
subject gay men and lesbians to different, and lessfavorable treatment, but “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); Cleburne, 473 U.S. at 448. A “punitive discrimination based on status” is “impermissible under the Equal Protection Clause.” Plyler, 457 U.S. at 240 (Powell, J. concurring).
This case provides an excellent vehicle for reviewing the constitutionality of this troubling and harmful law.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari before judgment should be granted.

33

Respectfully submitted,

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

Counsel for Petitioners Joanne Pedersen, et al.

August 21, 2012

1a
Appendix A
JOANNE PEDERSEN, et al., Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants, v. BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF
REPRESENTATIVES, Intervenor-Defendant.
CIVIL ACTION NO. 3:10-cv-1750 (VLB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
July 31, 2012, Decided
July 31, 2012, Filed
JUDGE: Hon. Vanessa L. Bryant, United States District Judge.
OPINION
MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO DISMISS [Dkt. #80]
Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently

2a
enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the plethora of federal laws which rely on DOMA’s definitions. Currently pending before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the Plaintiffs asserting that they are entitled to judgment as a matter of law, along with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the Bipartisan Legal Advisor Group of the United States House of Representatives, (“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both motions seek ultimate resolution of this matter, the Court will consider and review the motions simultaneously, addressing the fundamental question of whether or not Section 3 of DOMA can withstand the applicable level of constitutional scrutiny.
I. Factual Background
A. History of DOMA
DOMA was enacted on September 21, 1996 and signed into law by President Clinton after passing both houses of Congress with large majorities. Section 3 of DOMA, the provision which is the subject of the Plaintiffs’ constitutional challenge, codifies the following definition of the terms “marriage” and “spouse” as a matter of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative

3a
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. As expressly stated in the House Judiciary Committee Report on DOMA, DOMA was drafted as “a response to a very particular development in the State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited state-sanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and […] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis

4a
under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newlycoined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage, ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new. items/d04353r.pdf.
2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).

5a
of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.

6a
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Federation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9, 220 U.S. App. D.C. 89 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913). Under these regulations, those eligible for coverage may elect to enroll for individual coverage, or for both individual and family coverage. Id. (citing 5 U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to “the spouse of an employee or annuitant [or] an unmarried dependent

7a
child under 22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the demands of the workplace with the needs of families” by “entitl[ing] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible employees to take up to twelve work-weeks of unpaid leave during any twelvemonth period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the Department of Labor to implement the FMLA define the term “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).

8a
marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. §2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(i), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which

9a
impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that definedbenefit pension plans are subject to both ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire
1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 14344, 957 A.2d 407 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and

10a
one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 27-15 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex

11a
couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
2. Same-Sex Marriage in Vermont
On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224, 744 A.2d 864 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission,

12a
http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire
On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into law on May 31, 2007. 2007-2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.h tml.
C. Plaintiffs’ Factual Backgrounds
The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on

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their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3].
Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶67. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by samesex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.

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access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is

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required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of

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service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household.

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Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for and purchase health care coverage on the private insurance market. Id. at ¶¶66-67. Savoy applied to have his husband added to his existing health plan under the FHEB Program and his application was denied. Id. at ¶¶69-70.

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II. Standards of Review
A. Motion to Dismiss
“‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ “ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption

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of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d

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Cir.2006) (internal quotation marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.3:03cv481, 2004 U.S. Dist. LEXIS 22112, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F. Supp. 2d 28, 2011 WL 4396704 at *6 (D. Conn. 2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
III. Discussion
A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns
BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj. to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. §6013, does not on its own extend

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to same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a “husband and wife may make a single return jointly of income taxes...” 26 U.S.C. §6013(a). BLAG argues that these Plaintiffs lack standing “because the joint filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases’ and ‘Controversies’ and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’ – injury-in-fact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in

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federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise ... [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26 U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s gender-neutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a

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category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends

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on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case
BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and

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that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in

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the record,’... are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182, 99 S. Ct. 983, 59 L. Ed. 2d 230 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding samesex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth

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Amendment’s Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequentlyenacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S.

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202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (internal quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975)); See also Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)).

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The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the

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burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class
The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982).

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Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships.” See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members’ control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (Marshall, J. dissenting)

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(acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification
BLAG contends that sexual orientation has never been viewed as a suspect or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to

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classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasi-suspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications

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based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class ... Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. at 640 n.1; Lawrence v. Texas, 539 U.S. 558, 589 n.1, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). In view of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of

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California noted “[w]hen the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can ... be criminalized, homosexuals cannot constitute a suspect or quasisuspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’

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claim that gay persons are not a [suspect or] quasisuspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); BenShalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military’s mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986)); see also Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) (acknowledging that “judicial deference to such

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congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged”). Considering the inimitable circumstances attending military regulations and the uniquely deferential approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on Bowers, which was rejected in Lawrence, and relied on analyses in the deferential military context rather than the more discretionary civilian context, the precedential import of such authority is unpersuasive, particularly given the fact that the Second Circuit has not had an opportunity to consider the matter.
5The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.

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The Court is mindful of the Supreme Court’s admonition that “‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne, 473 U.S. at 441). The Supreme Court has to date only recognized a handful of suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation

39a
omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors
At the outset, this Court is guided by Justice Thurgood Marshall’s approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of

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classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ … must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations omitted). Thus the Court’s analysis will be cognizant of social, cultural and political perspectives grounded in experience as opposed to abstract logic and an awareness that there is likely no single talisman that signals which groups are the subject of classifications offensive to the principle of equal protection.
i. History of Discrimination
The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for

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centuries there have been powerful voices to condemn homosexual conduct as immoral’” and that “lesbians and gay men have suffered a long history of discrimination and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group.
BLAG argues that the history of discrimination against homosexuals is relatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].

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Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey. html (“It’s important to note that there’s been a long history in the regulation of sexual acts of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited
6BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert’s opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).

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sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as

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homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of

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homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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

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(December 15, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].

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Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 1186, at 10 (2009)).
The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination...”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinski, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to

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reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of homosexuality is increasing, gay men and lesbians have endured a long history of discrimination, both official and private.” Able v. United States, 968 F.Supp. 850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The Able court noted that discrimination against homosexuality began in the second half of the twelfth century and that the “‘earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages’ were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuality.” Id. at 852.

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In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
ii. Ability to Contribute to Society
Plaintiffs argue “there can be no credible dispute about whether sexual orientation bears a relation to one’s ‘ability to perform or contribute to society.’” [Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether

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homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.
Certainly the recent repeal of “Don’t Ask Don’t Tell” and the military’s contemporaneous recognition of the long history of valiant honorable service of homosexual servicemen and women attests to the fact that homosexuals have made the ultimate contribution to society. Defense Secretary Leon Panetta recently highlighted these contributions and “thank[ed] gay and lesbian service members, LCGT civilians, and their families for their dedicated service to our country.” Leon Panetta, Secretary Penetta Video Message for Lesbian, Gay, Bisexual, Transgender Pride Month from the Pentagon, U.S. Dep’t. of Def. (June 15, 2012), http://www.defense.gov/transcripts/transcript.aspx?tr anscriptid=5062. Secretary Panetta stated that “[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you faithfully served your country with professionalism and courage. And just like your fellow service members, you put your country before yourself...The pursuit of equality is fundamental to the American story. The successful repeal of ‘Don’t Ask, Don’t Tell’ proved to the Nation that just like the country we defend, we share different backgrounds, different values, and different beliefs – but together, we are the greatest military force in the world.” Id.
In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or

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vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinski, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their samesex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation ... bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society ... If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that

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race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or

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physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this factor weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.

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iii. Defining or Immutable Characteristics
Another relevant consideration is whether the characteristic that defines the class as a discrete group is immutable or otherwise not within the member’s control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986)). It does not appear that this factor is necessary to trigger heightened scrutiny in view of the Supreme Court’s recognition of suspect class to groups with ostensibly mutable characteristics. The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977). Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (acknowledging that illegitimate child may be legitimated by father). Further as the Kerrigan court astutely observed “not infrequently, the United States Supreme Court has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of a particular class.” Kerrigan, 289 Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 20, 25, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971)). Consequently, immutability is not an essential requirement but merely one indication that the classification reflects

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“deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20; Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806, 108 S. Ct. 52, 98 L. Ed. 2d 17 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peerreviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be

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successful and involve some risk of harm.” Id. at ¶26

(citing APA Task Force on Appropriate Therapeutic

Responses to Sexual Orientation, 2009, Report of the

Task

Force,

available

at

http://www.apa.org/pi/lgbt/publications/therapeutic-

response.pdf). The American Psychiatric Association,

American Psychological Association, American

Counseling Association, National Association of

Social Workers and the American Academy of

Pediatrics all “have adopted policy statements

cautioning professionals and the public about these

treatments.” Id. at ¶27. See also Perry v.

Schwarzenegger, 704 F.Supp.2d at 966 (“No credible

evidence supports a finding that an individual may,

through conscious decision, therapeutic intervention

or any other method, change his or her sexual

orientation.”). Lastly, studies have also indicated

that the majority of gay men and lesbians report that

they experienced no choice or little choice about their

sexual orientation. [Dkt. # 73, Peplau Aff., ¶25]

(citing 2010 national survey conducted with

representative sample of more than 650 self-

identified lesbian, gay and bisexual adults, 88% of

gay men reported that they had “no choice,” and 7%

reported “very little choice” while 68% of lesbians

responded they had “no choice at all” and 15%

reported having “very little choice.”).

Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied

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by Plaintiffs’ own experts...These differing

definitions show that these terms are amorphous and

do not adequately describe a particular class.” [Dkt.

#82, p. 22-23]. Although there might be subtle

semantic distinctions between each of these terms

from an academic perspective, each term is

principally defined as pertaining to same-sex

attraction or sexual behavior and could not be

understood without reference to this elemental

concept. In fact, the colloquial definitions of “gay,”

“lesbian” and even “sexual orientation” are each

defined by reference to “homosexual” which is

defined as sexual desire or intercourse between

individuals of the same sex. Merriam Webster

defines “Homosexual” as “of, relating to, or

characterized by a tendency to direct sexual desire

toward individuals of one’s own sex” or “of, relating

to, or involving sexual intercourse between

individuals of the same-sex.” Homosexual Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/homosexual (last visited July

27, 2012). “Gay” is defined as “homosexual;

especially: a homosexual male.” Gay Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/gay (last visited July 27,

2012). “Lesbian” is defined as “a woman who is

homosexual.” Lesbian Definition, MERRIAM-

WEBSTER.COM,

http://www.merriam-

webster.com/dictionary/lesbian (last visited July 27,

2012). Lastly, “sexual orientation” is defined as “the

inclination with respect to heterosexual, homosexual

and bisexual behavior.” Sexual orientation definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

58a

webster.com/medical/sexual%20orientation

(last

visited July 27, 2012). Although scholars may

quibble over subtle differences in terminology, it is

clear that none of these terms are neither amorphous

nor incapable of describing a particular class. Indeed,

the colloquial understanding of each of these terms

readily describe a class that is defined by same-sex

attraction and sexual behavior. BLAG’s contention

that “Plaintiffs’ claims run headlong into the

differing definitions of the terms” risks elevating

abstract logic over experience. Here experience

palpably demonstrates that each of these terms is

capable of describing a particular class with

precision and clarity.

BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep.,

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25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be

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immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims

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about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may

62a
comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having

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only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring

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characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev’d, 54 F.3d 261 (6th

65a
Cir.1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2990, 177 L. Ed. 2d 838 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than

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conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct ... [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to ... the development of human personality...” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and

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the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual … being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinski, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding

68a
that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly, immutability should “describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them.” Id.

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This Court finds the reasoning of the Ninth Circuit to be persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom. On this basis as well, this factor weighs in favor of the application of heightened scrutiny.
iv. Minority Status and Political Powerlessness
The final factor courts consider is whether the subject group is “a minority or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (internal quotation marks omitted). “This factor examines relative political power and seeks the answer the question whether the ‘discrimination is unlikely to be soon rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting Cleburne, 473 U.S. at 440).

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Courts place less weight with respect to this fourth and final factor considering that the Supreme Court has recognized gender as a quasi-suspect class despite the fact that the group was neither a minority nor truly politically powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging that women “do not constitute a small and powerless minority”); see also Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the [political powerlessness] test pales in comparison to the question[s] of whether ... the characteristic bears any relationship to the individual[‘]s ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the group’s own volition.”); In re Marriage cases, 43 Cal. 4th at 84243 (concluding that political powerlessness cannot be required for heightened scrutiny to apply because other groups like women and African Americans continue to be accorded heightened protection although they are no longer lacking in political power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group’s political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group’s political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial fact-finding.” 289 Conn. at 171. Despite this inherent difficulty, the

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Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of NonAdjudicative Facts, ¶71]7. Most recently months after the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/thefix/post/north-carolina-passes-gay-marriage-banamendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8 ; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of
8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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political power and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does

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not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly recognized the gains women had made politically when they recognized gender as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sexbased classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court ultimately declined to view this factor in a rigid fashion instead allowing women to satisfy this factor despite the fact that women were not entirely politically powerless. The Supreme Court concluded that while “[i]t is true, of course, that the position of women in America has

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improved markedly in recent decades” despite such improvement “women 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.” Id. at 685-86. Consequently, the Supreme Court held that “when viewed in the abstract, women do not constitute a small and powerless minority” however “in part because of past discrimination, women are vastly underrepresented in the Nation’s decisionmaking councils.” Id. at 686 n.17.
The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 473 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient

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political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the

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Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . 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” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.”

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[Dkt. #82, p. 13-14]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/Fede ralJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5% of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are

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independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/ news/article/New-state-law-requires-LGBT-historyin-textbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses

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sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/ news/nation/story/201202-16/tennessee-bill-homosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn. gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis. cbslocal.com/2012/04/23/controversial-dont-say-gaybill-debated-in-mo-house/; see also proposed House Bill No.2051, available at http://www.house. mo.gov/billtracking/bills121/biltxt/intro/HB2051I.ht m. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy, President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully

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passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socioeconomic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed

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for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.

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In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be ... rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding”[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection... In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendmentthe imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested

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against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985). Although not necessary to trigger heightened scrutiny, this Court finds that gay men and lesbians lack meaningful political power sufficient to satisfy this factor of the suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.9
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasisuspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education …. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail,

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434 U.S. 374, 384, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)). As the Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinski, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 576. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts.

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However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial recognition as a suspect classification. However, the Supreme Court has declined to afford them such status, opting instead to apply rational basis review rather than definitively address whether sexual orientation constitutes a suspect or quasi-suspect class. Accordingly, the Court will apply rational basis review. Even under this, the least intrusive level of review, Section 3 of DOMA fails to withstand constitutional scrutiny.
As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Communs.,
10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.

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Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations – illogical , it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 57 L.

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Ed. 730 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress’s generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification,

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where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S. at 320. The House Committee Report identifies “four governmental interests advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the IntervenorDefendant, has raised several additional objectives which could also have motivated Congress to include a classification based on sexual orientation in Section 3 of DOMA. Specifically, BLAG asserts that “Congress rationally could have been, and in fact was, concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc;
3) To maintain consistency and uniformity with regard to eligibility for federal benefits;
4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and

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5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the articulated legislative objectives, but also any “reasonable conceivable set of facts that could provide a rational basis for the classification,” the Court will consider all of the aforementioned objectives to determine whether the Plaintiffs have sustained their burden to negate “every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing

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children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic

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partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and child-rearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single

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individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits

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upon such marriages would further erode the societal conception of marriage as the appropriate childrearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which

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may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of lateremerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The

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End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit

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same-sex couples to adopt children and afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parentchild contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA hamfistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA

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deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents same-sex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal

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marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).

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heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex

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parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon oppositesex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for

102a
their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition … by an individual that may be a debtor … and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow enough in scope and grounded in sufficient factual context … to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude

103a
same sex couples … from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage samesex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope belies any rational relationship to the purported objective of promoting dual-gendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.

104a
3. Defending Traditional Notions of Morality
The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people … feel ought to be illegitimate … And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval … on a union that many people … think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id.
Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification

105a
incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponents Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at http://articles.courant.com/2003-03-25/features/ 0303250984_1_same-sex-marriage-same-sexceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ …] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral

106a
disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.

107a

BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.

Addressing first the assertion that precluding the

extension of federal marital benefits to same-sex

married couples will preserve government resources,

the Court finds that such assertion has no basis in

reality in light of the Congressional Budget Office’s

June 21, 2004 Report. The Report concluded that the

net effect of federal recognition and conferral of

marital benefits upon same-sex marriages would be

to “improve the budget’s bottom line to a small

extent: by less than $1 billion in each of the next 10

years.” CONGRESSIONAL BUDGET OFFICE, THE

POTENTIAL BUDGETARY IMPACT OF

RECOGNIZING SAME-SEX MARRIAGES, at 1

(June

21,

2004),

available

at

https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs

/55xx/doc5559/06-21-samesexmarriage.pdf. Neither

the House Report nor BLAG’s pleadings present any

evidence to the contrary. This conclusion by the

Congressional Budget Office, in the absence of any

108a
conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague

109a
generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance
The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in protecting state sovereignty and democratic selfgovernance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and

110a
democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of same-sex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded samesex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of

111a
government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore, contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire. This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire.12 BLAG’s concern for democratic
12See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.

112a
self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few

113a
states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to samesex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples. Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must

114a
serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most powerful. Such a rationale

115a
would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual

116a
marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring

117a
the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
IV. Conclusion
In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED, and IntervenorDefendant BLAG’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
/s/ Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 31, 2012

118a
Appendix B
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, DAMON SAVOY & JOHN WEISS
V.
OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as
the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his office capacity
as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as the United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED
STATES OF AMERICA
V.

119a
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES

NO. 3:10-CV-1750(VLB)

JUDGMENT

This action having come before the Court on plaintiffs’ motion for summary judgment and defendants’ motions to dismiss, before the Honorable Vanessa L. Bryant, United States District Judge; and

The Court having considered the full record of the case including applicable principles of law, and having issued an order granting the plaintiffs’ motion for summary judgment and denying defendants’ motions to dismiss; it is hereby

ORDERED, ADJUDGED and DECREED that judgment be and hereby is entered in favor of plaintiffs.

Dated at Hartford, Connecticut, this 2nd day of August, 2012.

EOD: 8/2/12

ROBIN D. TABORA, Clerk

By

/s/LL

Loraine LaLone

Deputy Clerk

120a Appendix C
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
_____________________________________ JOANNE PEDERSEN, et al.,
Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants.
No. 3:10-cv-01750-VLB _____________________________________
NOTICE OF APPEAL
Defendants hereby appeal to the United States Court of Appeals for the Second Circuit from the Judgment dated August 2, 2012 (Dkt. No. 118) and the underlying Memorandum of Decision dated July 31, 2012 (Dkt. No. 116). Date: August 17, 2012 Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General

121a
DAVID B. FEIN United States Attorney
ARTHUR R. GOLDBERG Assistant Branch Director
/s/ Judson O. Littleton JUDSON O. LITTLETON [phv04345] Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: (202) 305-8714 Fax: (202) 616-8470
Judson.O.Littleton@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2012, a copy of the foregoing Notice of Appeal was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System.
/s/ Judson O. Littleton JUDSON O. LITTLETON

 </s> No.
In the Supreme Court of the United States
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. JOANNE PEDERSEN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
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, who were defendants in the district court and are appellants in the court of appeals, are the Office of Personnel Management; Timothy F. Geithner, Secretary of the Treasury; Michael J. Astrue, Commissioner of Social Security; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Douglas H. Shulman, Commissioner of Internal Revenue; Eric H. Holder, Jr., Attorney General; Hilda L. Solis, Secretary of Labor; Thomas J. Curry, Comptroller of the Currency; and the United States of America.
Respondents, who were plaintiffs in the district court and are appellees in the court of appeals, are Joanne Pedersen, Ann Meitzen, Gerald V. Passaro, II, Lynda DeForge, Raquel Ardin, Janet Geller, Joanne Marquis, James Gehre, Damon Savoy, John Weiss, Bradley Kleinerman, Suzanne Artis, and Geraldine Artis.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS

Page

Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional and statutory provisions involved . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Appendix A – Memorandum (July 31, 2012) . . . . . . . . . . 1a Appendix B – Notice of appeal (Aug. 17, 2012) . . . . . . 104a Appendix C – Constitutional and statutory
provisions . . . . . . . . . . . . . . . . . . . . . . . 106a

TABLE OF AUTHORITIES
Cases:
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . 3 Baker v. Nelson:
191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . 7 409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Bowers v. Hardwick, 478 U.S. 186 (1986) . . . . . . . . . . . . . 8 Camreta v. Greene, 131 S. Ct. 2020 (2011) . . . . . . . . . . . 14 INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . 14 Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . 8, 11 Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 3 Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . 11

(III)

IV

Constitution and statutes:

Page

U.S. Const.: Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 10, 13
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . . . . . 2 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . . . passim
1 U.S.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5 U.S.C. 8901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. 401(h) (2006 & Supp. IV 2010) . . . . . . . . . . . . . . 4 26 U.S.C. 420 (2006 & Supp. IV 2010) . . . . . . . . . . . . . . . . . 4 26 U.S.C. 7701(p)(1)(3) (Supp. IV 2010) . . . . . . . . . . . . . . . 7 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 29 U.S.C. 1055(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 29 U.S.C. 2601 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 402(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . 3, 10
Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) . . . . . . . . . . . . . . . . . 4, 5

V

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/assets/100/ 92441.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

In the Supreme Court of the United States
No. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. JOANNE PEDERSEN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the Office of Personnel Management, et al., respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the district court (App., infra, 1a103a) is not yet reported but is available at 2012 WL 3113883.
JURISDICTION
The judgment of the district court was entered on August 2, 2012. A notice of appeal was filed on August 17, 2012 (App., infra, 104a-105a). The jurisdiction of
(1)

2
this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 106a.
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 to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7).

3 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 later recognized such marriages under their respective laws. See Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 6 nn.1 & 2 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012). Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes 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/assets/100/ 92441.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 opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18. 2. Plaintiffs are six same-sex couples married in Connecticut, New Hampshire, and Vermont and one surviving spouse of a same-sex couple married in Connecticut. First Am. Compl. ¶¶ 37, 39. They filed suit in the United States District Court for the District of Connecticut, alleging that, as a result of Section 3, they have

4
been denied certain federal benefits otherwise available to married couples or surviving spouses. Id. ¶ 11. Those benefits include 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(i), defined benefit pension plan benefits for spouses and surviving spouses of plan participants, see 26 U.S.C. 401(h), 420; 29 U.S.C. 1055(a)(2), federal leave benefits for covered individuals caring for spouses with serious health conditions, see 29 U.S.C. 2601 et seq., and married joint-filer status for federal income tax purposes. First Am. Compl. ¶¶ 6-10. Plaintiffs contend that, by treating married same-sex couples differently from married opposite-sex couples, Section 3 violates the right of equal protection secured by the Fifth Amendment. Id. ¶ 11. They seek declaratory and injunctive relief. Ibid.
3. After plaintiffs filed their complaint, 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 if binding precedent in the circuit 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 (this one and
1 3:10-cv-01750 Docket entry No. 39 (D. Conn. Feb. 25, 2011). Text also available at http://www.justice.gov/opa/pr/2011/February/11-ag223.html.

5 Windsor v. United States, petition for cert. before judgment pending, No. 12-63 (filed July 16, 2012)) had been filed in a circuit that had yet to address the appropriate standard of review. Attorney General Letter 1-2. The Attorney General explained that, after examining 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 relevance 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.

6 Following the Attorney General’s announcement, respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present arguments in defense of the constitutionality of Section 3.2 The district court granted the motion. 5/27/11 Order. Both BLAG and the government moved to dismiss plaintiffs’ challenge to the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss plaintiffs’ constitutional claim solely for purposes of ensuring that the court had Article III jurisdiction to enter judgment for or against the federal officials tasked with enforcing Section 3. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 of DOMA and that, under that standard of review, Section 3 violates the equal protection guarantee of the Fifth Amendment. Gov’t Resp. to Pl. Mot. for Summ. J. and Intervenor’s Mot. to Dismiss 8-34 (Sept. 14, 2011). 4. The district court denied BLAG’s motion to dismiss and granted summary judgment in favor of plaintiffs, concluding that Section 3 of DOMA violates the equal protection guarantee of the Fifth Amendment. App., infra, 1a-103a. a. As a preliminary matter, the district court rejected BLAG’s argument that plaintiffs who claim that Section 3 prohibited them from filing federal income tax returns as married joint filers lack Article III standing because the statute governing married joint filers, 26
2 Two of the group’s five members declined to support intervention. BLAG Mot. to Intervene 1 n.1 (Apr. 26, 2011).

7 U.S.C. 6013, does not extend by its own terms to married same-sex couples. App., infra, 18a-22a. While acknowledging that Section 6013 uses the terms “husband” and “wife,” the court explained that when used in federal statues, generally, and the Tax Code, specifically, those terms are presumptively gender-neutral. Id. at 19a-20a (citing 1 U.S.C. 1; 26 U.S.C. 7701(p)(1)(3)). The district court concluded, moreover, that Section 3 of DOMA, not Section 6013 of the Tax Code, caused plaintiffs’ alleged injury: Section 3 “was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns.” Id. at 20a.
b. The district court also rejected BLAG’s threshold argument that plaintiffs’ equal protection challenge 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, 185-187 (1971). App., infra, 22a-24a. After noting the “limited precedential value” of summary dismissals, id. at 22a, the court explained that, unlike in Baker, “the issue of whether there is a constitutional right to same-sex marriage is not present” in this case because plaintiffs “are validly married under state law,” id. at 23a-24a. The district court concluded therefore that Baker “is clearly unrelated” to the question of whether Section 3 violates the equal protection guarantee of the Fifth Amendment. Id. at 24a.
c. Turning to the constitutionality of Section 3, the district court determined that laws drawing distinctions

8 on the basis of sexual orientation are subject to heightened scrutiny. App., infra, 27a-75a. The court first concluded that the appropriate level of scrutiny was an open question in the Second Circuit; this Court and the Second Circuit “have not had occasion to squarely address it.” Id. at 29a. The district court declined to follow opinions from other circuits applying rational basis review because most relied on Bowers v. Hardwick, 478 U.S. 186 (1986), since overruled by Lawrence v. Texas, 539 U.S. 558 (2003), App., infra, 30a-31a; gave only “cursory consideration to the suspect class analysis,” ibid.; or involved “challenges to military policy on homosexual conduct,” which the district court viewed as “distinguishable from challenges within the civilian context,” id. at 32a.
The district court then considered the factors this Court has assessed in determining whether to apply heightened scrutiny to laws drawing distinctions on the basis of a particular classification. App., infra, 35a-75a. The court first examined the history of discrimination against the class. Id. at 36a-43a. The court found that “the evidence in the record detailing the long history of anti-gay discrimination which evolved from conductbased proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination”—a history “widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence.” Id. at 41a, 43a.
The district court then examined whether the distinguishing class characteristic indicates a typical class member’s ability to contribute to society. App., infra, 43a-47a. The court noted that “BLAG’s argument fails

9 to address and therefore apparently concedes that this factor is met.” Id. at 44a. Nevertheless, the district court pointed to homosexuals’ discrete societal contributions, ibid., “the long-held consensus of the psychological and medical community,” ibid., and other evidence to determine that sexual orientation “is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society,” id. at 47a. Instead, the district court found that “like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Ibid.
Next, the district court assessed whether the distinguishing class characteristic is immutable, App., infra, 47a-61a, determining that “the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence,” id. at 52a. Relying on the apparent “consensus in the scientific community,” id. at 48a (citation omitted), “the increasing recognition that sexual orientation is fundamental and central to one’s identity,” id. at 58a, and other evidence, the court concluded that sexual orientation “should be considered immutable,” id. at 60a. “To hold otherwise,” the court explained, “would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity.” Ibid.
Finally, the district court looked to the class’s political power. App., infra, 61a-75a. The court acknowledged that homosexuals have made “some modest successes in mitigating existing discrimination.” Id. at 72a. Relying on evidence demonstrating that homosexuals “are legally discriminated against in a variety of ways,” id. at 63a, and “are underrepresented in political office,”

10 id. at 64a, however, the court concluded that homosexuals “lack meaningful political power sufficient to satisfy this factor,” id. at 73a.
Having assessed what it considered the relevant factors, the district court determined that “homosexuals display all the traditional indicia of” a suspect or quasisuspect class. App., infra, 73a. The court thus held that laws drawing distinctions on the basis of sexual orientation are subject to heightened scrutiny. Id. at 73a-74a.
d. To assess the constitutionality of Section 3, the district court nevertheless applied rational basis review. App., infra, 75a-102a. The court reasoned that this Court has opted “to apply rational basis review rather than definitively address whether sexual orientation constitutes a suspect or quasi-suspect class.” Id. at 75a.
The district court held that Section 3 violates the Fifth Amendment’s guarantee of equal protection. App., infra, 75a. The court concluded that neither the legislative purposes articulated in support of Section 3 at the time of its enactment (see 1996 House Report 12) nor additional interests offered by BLAG bear a rational relationship to a legitimate governmental objective. Id. at 78a-102a.
The district court first could discern “no rational relationship” between Section 3 and an asserted federal governmental interest in defending and nurturing the institution of heterosexual marriage. App., infra, 81a. The court explained that, among other problems, Section 3 “disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples” that are recognized as married under federal law. Id. at 86a-87a (citing various disclosure requirements involving spouses of federal officials). The court also rejected BLAG’s argument that Con-

11 gress might have enacted Section 3 with the “objective of ensuring that children have parents of both sexes.” Id. at 89a. The court reasoned that Section 3 “is at once too narrow and too broad” to be rationally related to that objective, ibid. (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)), because Section 3 “does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children,” id. at 90a, and “confers [federal marital] benefits upon opposite-sex married couples who have elected not to create or raise children,” id. at 89a.
Next, the district court concluded that the asserted federal governmental interest in defending traditional notions of morality cannot withstand rational basis review. App., infra, 93a. “[M]oral disapproval of [a] group,” the court reasoned, “is an interest that is insufficient.” Id. at 92a (quoting Lawrence, 539 U.S. at 582 (O’Connor, J., concurring in the judgment)). The court also determined that “the government’s interest in preserving scarce governmental resources” alone cannot “provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class.” Id. at 93a, 95a.
Turning to “the objective of advancing the government’s interest in protecting state sovereignty and democratic self-governance,” App., infra, 95a, the district court explained that “same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire,” id. at 97a-98a. The court therefore concluded that Section 3 itself “can be seen to frustrate the utility and promise of federalism and the democratic process” to the extent it “abridges these states’ right to confer marital status on [their] residents.” Id. at 98a.

12 The district court also rejected BLAG’s argument that “Congress could have rationally enacted [Section 3] in an effort to proceed with caution in an area of social policy of such great significance.” App., infra, 99a. That rationale, the court found, “is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits,” an assertion already deemed insufficient by the district court. Id. at 101a. Finally, the court determined that Section 3 does not advance an asserted federal governmental interest in maintaining consistency and uniformity in federal benefits because Section 3 “in fact infuses complexity and inconsistency” into that realm by “requiring the federal government to identify and exclude all same-sex marital unions from federal recognition.” Ibid. 5. The government filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. App., infra, 104a-105a. The court of appeals has jurisdiction pursuant to 28 U.S.C. 1291. The appeal was docketed as No. 12-3273 and remains pending before that court. The case is therefore “in the court[] of appeals” within the meaning of 28 U.S.C. 1254. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 83-84 (9th ed. 2007). 6. Plaintiffs filed a petition for a writ of certiorari before judgment in this case on August 21, 2012 (No. 12231), and responses to that petition are currently due on September 21, 2012.

13
REASONS FOR GRANTING THE PETITION
The question of whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection as applied to same-sex couples legally married under state law is presented in the government’s petition for a writ of certiorari in United States Department of Health & Human Services v. Massachusetts, No. 12-15 (filed July 3, 2012),3 and in the government’s petition for a writ of certiorari before judgment in Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). For the reasons explained in those pending petitions, that question warrants this Court’s review now.
The Court should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski. Should the Court grant review in either of those cases, it need not grant review in this case. If the Court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant this petition to ensure a timely and definitive ruling on Section 3’s constitutionality. As in Golinski, the district court’s consideration of the applicable level of scrutiny in this case (App., infra, 29a-75a) may materially assist this Court’s consideration of that issue. See Golinski Pet. 13.
As noted above, the plaintiffs in this case have also filed a petition for a writ of certiorari before judgment on Section 3’s constitutionality (No. 12-231, filed Aug. 21, 2012), and the plaintiff in Windsor v. United States, No. 12-63 (filed July 16, 2012), has done so as well. As
3 Two other petitions for a writ of certiorari have been filed in the Massachusetts case, one by BLAG (No. 12-13) and a conditional crosspetition by the Commonwealth of Massachusetts (No. 12-97).

14
explained in the government’s response to the Windsor petition (at 17-19), however, plaintiffs’ petitions in both Windsor and this case raise a threshold question concerning this Court’s review: whether plaintiffs, who obtained a district court judgment and decision entirely in their favor, have appellate standing to seek certiorari before judgment. As further explained in that response (at 19-20), the government, which plainly is a proper party to invoke this Court’s jurisdiction to review the district court’s judgment in this case, has filed this petition (as well as one in Windsor) to obviate the Court’s need to resolve the appellate-standing issue if it is inclined to grant review in this case or in Windsor.4
4 BLAG contends that the plaintiff in Windsor, similarly situated to the plaintiffs in this case, potentially lacks appellate standing by referring to its argument that the government lacks standing to seek this Court’s review of the First Circuit’s judgment in Massachusetts. See BLAG No. 12-63 Br. in Opp. 12 (“What is more, as explained more fully in the House’s opposition in No. 12-15, it is not clear that [plaintiff Windsor], who prevailed in the district court, even has appellate standing to petition.”). But one critical fact materially distinguishes the government from the plaintiff in Windsor and the plaintiffs in this case: the district court’s judgment was entered against the government, such that the government is not a “prevailing party” in the relevant sense. See Camreta v. Greene, 131 S. Ct. 2020, 2028-2029 (2011). As the Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), makes clear, “[w]hen 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 seek this Court’s review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.” Id. at 930-931. Although BLAG points out in its response to the government’s petition in Massachusetts that Section 3 (unlike the statute at issue in Chadha) is not administered by a single agency, that is a distinction without a difference. Indeed, BLAG makes no effort to explain why that distinction could matter. See BLAG No. 12-15 Br. in Opp. 18-19.

15
CONCLUSION
This petition for a writ of certiorari before judgment should be held pending the Court’s consideration and disposition of the petitions in United States Department of Health and Human Services v. Massachusetts, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), and Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). If the Court determines that neither Massachusetts nor Golinski provides an appropriate opportunity to decide the question presented, the Court should grant this petition.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
SEPTEMBER 2012

APPENDIX A
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
Civil Action No. 3:10-cv-1750 (VLB) JOANNE PEDERSEN, ET AL., PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
v. BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED
STATES HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
July 31, 2012
MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
[Dkt. # 60] AND DENYING INTERVENORDEFENDANT’S MOTION TO DISMISS [Dkt. # 80]
Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. § 7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunc-
(1a)

2a
tive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the plethora of federal laws which rely on DOMA’s definitions. Currently pending before the Court is a Motion for Summary Judgment [Dkt. # 60] filed by the Plaintiffs asserting that they are entitled to judgment as a matter of law, along with a Motion to Dismiss [Dkt. # 80] filed by the Intervenor-Defendants, the Bipartisan Legal Advisor Group of the United States House of Representatives, (“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both motions seek ultimate resolution of this matter, the Court will consider and review the motions simultaneously, addressing the fundamental question of whether or not Section 3 of DOMA can withstand the applicable level of constitutional scrutiny. I. Factual Background
A. History of DOMA DOMA was enacted on September 21, 1996 and signed into law by President Clinton after passing both houses of Congress with large majorities. Section 3 of DOMA, the provision which is the subject of the Plaintiffs’ constitutional challenge, codifies the following definition of the terms “marriage” and “spouse” as a matter 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 le-

3a
gal 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. As expressly stated in the House Judiciary Committee Report on DOMA, DOMA was drafted as “a response to a very particular development in the State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 2-4 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”). The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. § 572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited state-sanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and [ . . . ] as applied, HRS § 572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newly-coined institution of homosexual ‘marriage’ upon an unwilling

4a Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage, ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F. Supp. 2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n.119 (2011) (citing U.S. Gov’t Accountability Office, GAO-04353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012)

5a
from historians, economists, or specialists in family or child welfare.” Gill, 699 F. Supp. 2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “OneTime-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F. Supp. 2d at 380 (citing 5 U.S.C. § 8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Foundation of Fed. Employees v.

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Devine, 679 F.2d 907, 913 n.9 (D.D.C. 1981) (citing S. Rep. No. 468, 86th Cong., 1st Sess. 1-2 (1959); H.R. Rep. No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. § 8913). Under these regulations, those eligible for coverage may elect to enroll for individual coverage, or for both individual and family coverage. Id. (citing 5 U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” Id. (citing 5 U.S.C. § 8901(5).
The FMLA was enacted to further public policy, specifically “to balance the demands of the workplace with the needs of families” by “entitl[ing] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. § 2601(b)(1), (2).3 To accomplish these goals, the FMLA
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical rea-

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entitles eligible employees to take up to twelve workweeks of unpaid leave during any twelve-month period. 29 U.S.C. § 2612(a)(1). The regulations promulgated by the Department of Labor to implement the FMLA define the term “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. § 2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F. Supp. 2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who
sons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. § 2601(b).

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had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§ 402(I), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that defined-benefit pension plans are subject to both ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. § 1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. § 420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire 1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No. 05-10, codified at Conn. Gen. Stat. §§ 46b38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to

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spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 143-44 (2008) (citing Conn. Gen. Stat. § 46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and one woman.’ ” Id. (quoting Conn. Gen. Stat. § 46b-38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-sex couples full marriage rights. See Raised H.B. No. 7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 27-15 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex couples

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full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No. 09-13.
2. Same-Sex Marriage in Vermont On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission, http://hrc.vermont.gov/ Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to

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solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into law on May 31, 2007. 2007–2 N.H. Rev. Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H. Rev. Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes. com/2009/06/04/us/04marriage.html. c. Plaintiffs’ Factual Backgrounds The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on their married status.4 [Dkt. # 61, Pl. Local Rule 56(a)1 Statement, ¶¶ 13].
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by same-sex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.

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Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶ 4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶ 5. Pedersen contacted FEHB and was told that her wife could not be added to her insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶ 6-7. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶ 8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶ 10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶ 13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id.

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at ¶ 16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶ 18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶ 19.
Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶ 20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶ 21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶ 22-23. DeForge is required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶ 25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶ 2728. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶ 29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was in-

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formed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶ 32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶ 36.
Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶ 38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶ 39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶ 41. Because Marquis has over 30 years of service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶ 4245.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶ 47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶ 49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each

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paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id. at ¶¶ 50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶ 55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household. Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶ 57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶ 58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶ 60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶ 62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶ 64, 66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB

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program. Id. at ¶ 65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for and purchase health care coverage on the private insurance market. Id. at ¶¶ 66-67. Savoy applied to have his husband added to his existing health plan under the FHEB Program and his application was denied. Id. at ¶¶ 69-70. II. Standards of Review
A. Motion to Dismiss “ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted). In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint.

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Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ ” Id. (quoting Iqbal, 129 S. Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal quotation marks and citation omitted).

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“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011 WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010). III. Discussion
A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns
BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. See [Dkt. # 82, BLAG Obj. to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. § 6013, does not on its own extend to same-sex couples.” Id. at 34. 26 U.S.C. § 6013 provides in relevant part that a “husband and wife may make a single return jointly of income taxes . . . ” 26 U.S.C. § 6013(a). BLAG argues that these Plaintiffs lack stand-

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ing “because the joint filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. # 82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases’ and ‘Controversies’ and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’—injury-in-fact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise . . . [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. § 1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. § 1 for the other definitions including “masculine as includ-

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ing feminine.” See 26 U.S.C. § 7701(p)(1)(3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s gender-neutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA—and not Code Section 6013—is the reason that same-sex couples may not file joint tax returns.” [Dkt. # 95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax—For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. # 100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the reason why they

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were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. # 100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of § 1 or as husband and wife for purposes of § 6013.” [Dkt. # 100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax—For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. # 100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial of joint married filing status. The Court therefore finds that the

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“Tax Plaintiffs” have standing to pursue their claims in this Court.
C. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case
BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. # 81, BLAG Motion to Dismiss, p. 14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257(2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.

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The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in the record,’ . . . are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state law. Consequently, Baker, which addressed whether there was a constitutional right to

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same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F. Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth Amendment’s Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequently-enacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cle-

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burne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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 quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, wellestablished to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)).
The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979). “A legislature must have substantial latitude to establish

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classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F. Supp. 2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.

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D. Suspect Class The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99 (1982). Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships”. See [Dkt. # 63, Pl. Motion for Summary Judgment, p. 15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995)).

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The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members’ control; and (4) the political power of the subject class.” Golinski, 824 F. Supp. 2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J. dissenting) (acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis

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on the first two factors. See Golinski, 824 F. Supp. 2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification
BLAG contends that sexual orientation has never been viewed as a suspect or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. # 82, p. 8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasi-suspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational

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basis test” on appeal); see also Windsor, 833 F. Supp. 2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasisuspect class . . . Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. 640 n.1; Lawrence v. Texas, 529 U.S. 558, 529 n.1 (2003). In view of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class

31a analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of California noted “[w]hen the premise for a case's holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F. Supp. 2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983-984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can . . . be criminalized, homosexuals cannot constitute a suspect or quasisuspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.” Id. at 233.

32a Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. # 98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); Ben-Shalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military’s mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “ ‘review of military regulations . . . is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’ ” Able, 155 F.3d at 633 (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)); see also Rostker v. Goldberg, 453 U.S. 57, 70 (1981) (acknowledging that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged”).   Considering the inimitable circumstances attending military regulations and the uniquely deferential approach afforded to such regu-

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lations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on Bowers, which was rejected in Lawrence, and relied on analyses in the deferential military context rather than the more discretionary civilian context, the precedential import of such authority is unpersuasive, particularly given the fact that the Second Circuit has not had an opportunity to consider the matter.
The Court is mindful of the Supreme Court’s admonition that “ ‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne, 473 U.S. at 441). The Supreme Court has to date only recognized a handful of suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686
5 The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.

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(1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506 (1976) (illegitimacy subject to intermediate scrutiny); cf., e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fa-

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thers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors At the outset, this Court is guided by Justice Thurgood Marshall’s approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n.24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ . . . must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’ ” Id. (citations omitted). Thus the Court’s analysis will be cognizant of social, cultural and political perspectives grounded in experience

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as opposed to abstract logic and an awareness that there is likely no single talisman that signals which groups are the subject of classifications offensive to the principle of equal protection.
i. History of Discrimination The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for centuries there have been powerful voices to condemn homosexual conduct as immoral’ ” and that “lesbians and gay men have suffered a long history of discrimination and condemnation.” [Dkt. # 63, p. 30] (citing Lawrence, 539 U.S. at 571). BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group. BLAG argues that the history of discrimination against homosexuals is relatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class. [Dkt. # 82, p. 9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff ’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a dis-

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tinct category of people in the nineteenth century. Id., see also [Dkt. # 74, Chauncey Aff., ¶ 10].
Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’ ” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. # 74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http:// www.glbtg.com/sfeatures/interviewgchauncey.html (“It’s important to note that there’s been a long history in the regulation of sexual acts of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited sodomy.” [Dkt. # 74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy
6 BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. # 82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert’s opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).

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into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶ 18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶ 19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶ 21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to con-

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duct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct— conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. # 72, Segura Aff., ¶¶ 56-64] (discuss-

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ing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. # 74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. # 98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120 (1967) (concluding that the legislative history of

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the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. # 98, p. 15-19].
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 11-86, at 10 (2009)).
The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination . . . ”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinksi, 824 F. Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have

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experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 981-82 (N.D. Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to reflect deep-seated prejudice rather than . . . rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of homosexuality is increasing, gay men and lesbians have endured a long history of discrimination, both official and private.” Able v. United States, 968 F. Supp. 850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The Able court noted that discrimination against homosexuality began in the second half of the twelfth century and that the “ ‘earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages’ were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social Tolerance and Homosexuality, 281

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(1980)). The Able court also emphasized that during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuality.” Id. at 852.
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
ii. Ability to Contribute to Society Plaintiffs argue “there can be no credible dispute about whether sexual orientation bears a relation to one’s ‘ability to perform or contribute to society.’ ” [Dkt. # 63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. # 82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has

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any relation or nexus to the question of whether homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.
Certainly the recent repeal of “Don’t Ask Don’t Tell” and the military’s contemporaneous recognition of the long history of valiant honorable service of homosexual servicemen and women attests to the fact that homosexuals have made the ultimate contribution to society. Defense Secretary Leon Panetta recently highlighted these contributions and “thank[ed] gay and lesbian service members, LCGT civilians, and their families for their dedicated service to our country.” Leon Panetta, Secretary Penetta Video Message for Lesbian, Gay, Bisexual, Transgender Pride Month from the Pentagon, U.S. Dep’t. of Def. (June 15, 2012), http://www.defense.gov/ transcripts/transcript.aspx?transcriptid=5062. Secretary Panetta stated that “[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you faithfully served your country with professionalism and courage. And just like your fellow service members, you put your country before yourself . . . The pursuit of equality is fundamental to the American story. The successful repeal of ‘Don’t Ask, Don’t Tell’ proved to the Nation that just like the country we defend, we share different backgrounds, different values, and different beliefs—but together, we are the greatest military force in the world.” Id.
In addition, the long-held consensus of the psychological and medical community is that “ ‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or vocational capabilities.’ ” [Dkt. # 73, Peplau Aff., ¶ 30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long

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and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. # 63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinksi, 824 F. Supp. 2d at 986; Perry v. Schwarzenegger, 704 F. Supp. 2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 688, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’ ”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation . . . bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society . . . If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).

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The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable . . . that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the

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courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this factor weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.
iii. Defining or Immutable Characteristics Another relevant consideration is whether the characteristic that defines the class as a discrete group is immutable or otherwise not within the member’s control. Golinski, 824 F. Supp. 3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638 (1986)). It does not appear that this factor is necessary to trigger heightened scrutiny in view of the Supreme Court’s recognition of suspect class to groups with ostensibly mutable characteristics. The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977). Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431 (1998) (acknowledging that illegitimate

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child may be legitimated by father). Further as the Kerrigan court astutely observed “not infrequently, the United States Supreme Court has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of a particular class.” Kerrigan, 289 Conn. at 171 n.20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 20, 25 (1973); Graham v. Richardson, 403 U.S. 365, 371-72 (1971)). Consequently, immutability is not an essential requirement but merely one indication that the classification reflects “deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20; Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class . . . . But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806 (1987); Able, 968 F. Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. # 63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F. Supp. 2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of longlasting and committed relationships between same-sex

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couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶ 22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peer-reviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be successful and involve some risk of harm.” Id. at ¶ 26 (citing APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation, 2009, Report of the Task Force, available at http://www.apa.org/pi/lgbt/ publications/therapeutic-response.pdf). The American Psychiatric Association, American Psychological Association, American Counseling Association, National Association of Social Workers and the American Academy of Pediatrics all “have adopted policy statements cautioning professionals and the public about these treatments.” Id. at ¶ 27. See also Perry v. Schwarzenegger, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”). Lastly, studies have also indicated that the majority of gay men and lesbians report that they experienced no choice or little choice about their sexual orientation. [Dkt. # 73, Peplau Aff., ¶ 25] (citing 2010 national survey conducted with representative sample of more than 650 self-identified lesbian, gay and bisexual adults, 88% of gay men reported that they had “no choice,” and 7% reported “very little choice” while 68% of lesbians responded they had “no choice at all” and 15% reported having “very little choice.”).
Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG

50a contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘gay’ and ‘lesbian’ supplied by Plaintiffs’ own experts . . . These differing definitions show that these terms are amorphous and do not adequately describe a particular class.” [Dkt. # 82, p. 22-23]. Although there might be subtle semantic distinctions between each of these terms from an academic perspective, each term is principally defined as pertaining to samesex attraction or sexual behavior and could not be understood without reference to this elemental concept. In fact, the colloquial definitions of “gay,” “lesbian” and even “sexual orientation” are each defined by reference to “homosexual” which is defined as sexual desire or intercourse between individuals of the same sex. Merriam Webster defines “Homosexual” as “of, relating to, or characterized by a tendency to direct sexual desire toward individuals of one’s own sex” or “of, relating to, or involving sexual intercourse between individuals of the same-sex.” Homosexual Definition, MERRIAM-WEBSTER.COM, http://www. merriam-webster.com/dictionary/homosexual (last visited July 27, 2012). “Gay” is defined as “homosexual; especially: a homosexual male.” Gay Definition, MERRIAM-WEBSTER.COM, http://www.merriamwebster.com/dictionary/gay (last visited July 27, 2012). “Lesbian” is defined as “a woman who is homosexual.” Lesbian Definition, MERRIAM-WEBSTER.COM, http:// www.merriam-webster.com/dictionary/lesbian (last visited July 27, 2012). Lastly, “sexual orientation” is defined as “the inclination with respect to heterosexual, homosexual and bisexual behavior.” Sexual orientation definition, MERRIAM-WEBSTER.COM, http://

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www.merriamwebster.com/medical/sexual%20orientation (last visited July 27, 2012). Although scholars may quibble over subtle differences in terminology, it is clear that none of these terms are neither amorphous nor incapable of describing a particular class. Indeed, the colloquial understanding of each of these terms readily describe a class that is defined by same-sex attraction and sexual behavior. BLAG’s contention that “Plaintiffs’ claims run headlong into the differing definitions of the terms” risks elevating abstract logic over experience. Here experience palpably demonstrates that each of these terms is capable of describing a particular class with precision and clarity.
BLAG also contends that homosexuality cannot be immutable since Plaintiff ’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. # 82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. # 83, attach 2, Exhibit B, Peplau Dep., 25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be prema-

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ture to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. # 82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG

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emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff ’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. # 82, p. 23] (citing Peplau Aff. at ¶ 23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. # 73, ¶ 23]. Peplau elaborates that “ ‘claims about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity

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in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction.” [Dkt. # 82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexi-

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bility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that samesex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. # 73, Peplau Aff., ¶ 23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually

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changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. # 73, Peplau Aff., ¶ 23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States,

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871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev’d, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S. Ct. 2971, 2290 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such

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circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct . . . [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to . . . the development of human personality . . . ” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so fundamental to one’s identity that a person should not be required to abandon them;” and there-

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fore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouini v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual . . . being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87 (“In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinksi, 824 F. Supp. 2d at 987 (finding persuasive the Ninth Circuit’s prior holding that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the

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sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity. Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly, immutability should “describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them.” Id. This Court finds the reasoning of the Ninth Circuit to be persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of

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their identity; an aspect which has been recognized as an integral part of human freedom. On this basis as well, this factor weighs in favor of the application of heightened scrutiny.
iv. Minority Status and Political Powerlessness The final factor courts consider is whether the subject group is “a minority or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal quotation marks omitted). “This factor examines relative political power and seeks the answer the question whether the ‘discrimination is unlikely to be soon rectified by legislative means.’ ” Golinski, 824 F. Supp. 2d at 987 (quoting Cleburne, 473 U.S. at 440). Courts place less weight with respect to this fourth and final factor considering that the Supreme Court has recognized gender as a quasi-suspect class despite the fact that the group was neither a minority nor truly politically powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging that women “do not constitute a small and powerless minority”); see also Equality Foundation, 860 F. Supp. at 437-38 n.17 (“[T]he significance of the [political powerlessness] test pales in comparison to the question[s] of whether . . . the characteristic bears any relationship to the individual[’]s ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the group’s own volition.”); In re Marriage cases, 43 Cal. 4th at 842-43 (concluding that political powerlessness cannot be required for heightened scrutiny to apply because other groups like women and African Americans continue to be accorded heightened protection although they are no longer lacking in political pow-

62a er). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group’s political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group’s political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial fact-finding.”  289 Conn. at 171. Despite this inherent difficulty, the Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. # 63, p. 21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. # 72, Segura Aff., ¶ 45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. # 62, Pl. Separate Statement of Non-Adjudicative Facts, ¶ 71].7 Most recently months after the parties
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶ 71 concerning the number of states that have passed anti-gay mar-

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filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17 am), http://www.washingtonpost.com/blogs/the-fix/post/northcarolina-passes-gay-marriage-ban-amendment-one/2012/ 05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. # 72, ¶ 39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. # 62, ¶¶ 68, 70]8; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian popu-
riage statutes or constitutional amendments is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.
8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶ 68, 70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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lation. [Dkt. # 72, ¶¶ 45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of political power and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. # 94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the illdefined nature of this factor, Supreme Court precedent does not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly recognized the

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gains women had made politically when they recognized gender as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate . . . between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex. Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court ultimately declined to view this factor in a rigid fashion instead allowing women to satisfy this factor despite the fact that women were not entirely politically powerless. The Supreme Court concluded that while “[i]t is true, of course, that the position of women in America has improved markedly in recent decades” despite such improvement “women 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.” Id. at 685-86. Consequently, the Supreme Court held that “when viewed in the abstract, women do not constitute a small and powerless minority” however “in part because of past discrimination, women are vastly

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underrepresented in the Nation’s decisionmaking councils.” Id. at 686 n.17.
The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F. Supp. 2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 437 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. # 82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are

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not totally devoid of political power, however it does not establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the Administration’s current opinion. Golinski, 824 F. Supp. 2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . 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

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plausible argument to be a ‘reasonable’ one” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. # 39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F. Supp. 2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” [Dkt. # 82, p. 13-14]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/Federal Judgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5% of the Uni-

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ted States population is gay, lesbian or bisexual. [Dkt. # 72, ¶ 45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. # 82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/news/article/New-statelaw-requires-LGBT-history-intextbooks-2354578. php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t say gay” bills which would not only

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have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday. com/news/nation/story/2012-02-16/tennessee-bill-homo sexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn.gov/Bills/107/Bill/ SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis. cbslocal.com/2012/04/23/controversial-dont-say-gay-billdebated-in-mo-house/; see also proposed House Bill No. 2051, available at http://www.house.mo.gov/ billtracking/bills121/biltxt/intro/HB20511.htm. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of samesex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy, President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay mar-

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riage is inevitable. [Dkt. # 82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F. Supp. 2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. # 62, ¶ 71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F. Supp. 2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. # 82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socio-economic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still

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unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F. Supp. 2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http:// online.wsj.com/article/SB122586056759900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. # 82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.
In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be . . . rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in

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comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding “[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection . . . In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendment-the imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985). Although not necessary to trigger heightened scrutiny, this Court finds that gay men and lesbians lack meaningful political power sufficient to satisfy this factor of the suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of

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suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.9 However, the Court need not
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasi-suspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). As the Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinksi, 824 F. Supp. 2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by

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apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.10
E. Rational Basis Review As discussed above, in this Court’s opinion, homosexuals warrant judicial recognition as a suspect classification. However, the Supreme Court has declined to afford them such status, opting instead to apply rational basis review rather than definitively address whether sexual orientation constitutes a suspect or quasi-suspect class. Accordingly, the Court will apply rational basis review. Even under this, the least intrusive level of re-
sexual orientation. 539 U.S. at 560. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts.
10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.

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view, Section 3 of DOMA fails to withstand constitutional scrutiny.
As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’ ” Windsor, 833 F. Supp. 2d at 400 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’ ” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’ ” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’ ” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.”

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Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress’s generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F. Supp. 2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification, where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S. at 320. The House Committee Report iden-

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tifies “four governmental interests advanced by this legislation [DOMA],” including:
(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 governmental resources. House Report at 12. BLAG, as the IntervenorDefendant, has raised several additional objectives which could also have motivated Congress to include a classification based on sexual orientation in Section 3 of DOMA. Specifically, BLAG asserts that “Congress rationally could have been, and in fact was, concerned” with the following objectives: 1) To employ caution in the face of a proposed re-
definition of the centuries-old definition of marriage; 2) To protect the public fisc; 3) To maintain consistency and uniformity with regard to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes. See [Dkt. # 81, p. 11]. As rational basis review requires the Court to consider not only the articulated legislative objectives, but also any “reasonable conceivable set of facts that could provide a rational basis for the classification,” the Court will consider all of the aforementioned objectives to

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determine whether the Plaintiffs have sustained their burden to negate “every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. # 81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rear-

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ing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic partnerships and same-sex marriages. [Dkt. # 81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births

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to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. # 95, p. 23]. In particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and child-rearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of fed-

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eral marital benefits to same-sex married couples and the objective of discouraging extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits upon such marriages would further erode the societal conception of marriage as the appropriate child-rearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-ofwedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or

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whether new factors have emerged to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on samesex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of later-emerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide for and raise children and which increases taxes, thereby driving women into the

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workforce, further increasing their independence. Kurtz, The End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit same-sex couples to adopt children and afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the

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Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, § 1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. § 45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. § 170-B:4 (2004). DOMA ham-fistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA deprives members of samesex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would

86a
be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents same-sex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§ 455(b)(4), 455(c) (requiring federal judges to recuse

87a themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§ 2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5 .U.S.C. App. § 101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on samesex married couples will decrease the number of out-ofwedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to be attained, the Court finds that there is no rational relationship between the classification and its objective.
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§ 101(c), (f).

88a
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. # 81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. # 63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately burdens the fundamental right to decide ‘whether to bear or beget a child.’ ” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

89a The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon opposite-sex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151(b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. § 302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition . . . by an individual that may be a debtor . . . and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].”).

90a
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude same sex couples . . . from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage same-sex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on samesex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope belies any rational relationship to the purported objective of promoting dual-gendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the

91a
amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.
3. Defending Traditional Notions of Morality The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate . . . And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id. Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification incorporated into the statute to deny

92a
same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponent’s Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at articles.courant.com/2003-03-25/features/0303250984 _1_same-sex-marriage-same-sex-ceremonies-same-sexunions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ . . . ] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in

93a
fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.
BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal reve-

94a
nue.” [Dkt. # 63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.
Addressing first the assertion that precluding the extension of federal marital benefits to samesex married couples will preserve government resources, the Court finds that such assertion has no basis in reality in light of the Congressional Budget Office’s June 21, 2004 Report. The Report concluded that the net effect of federal recognition and conferral of marital benefits upon same-sex marriages would be to “improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years.” COGRESSIONAL BUDGET OFFICE, THE POTENTIAL BUDGETARY IMPACT OF RECOGNIZING SAME-SEX MARRIAGES, at 1 (June 21, 2004), available at https://www. cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5559/ 06-21-samesexmarriage.pdf. Neither the House Report nor BLAG’s pleadings present any evidence to the contrary. This conclusion by the Congressional Budget Office, in the absence of any conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.

95a
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance
The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in protecting state sovereignty and democratic self-governance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulat-

96a
ed the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic selfgovernance in its motion to dismiss, urging the Court to reserve resolution of the issue of same-sex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and

97a
resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. # 81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded same-sex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore, contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority longrecognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic selfgovernance is curious in that same-sex marriage is the product of democratic self-governance at the state level

98a in Connecticut, Vermont, and New Hampshire.12 This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire. BLAG’s concern for democratic self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
12 See supra Section I(B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.

99a
6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to same-sex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. # 81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same

100a
treatment as unmarried same-sex couples. Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must serve some ‘independent and legitimate legislative end.’ ” [Dkt. # 95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F. Supp. 2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. # 81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most powerful. Such a rationale would

101a
have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of samesex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the federal government simply recognized all heter-

102a
osexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA. IV. Conclusion
In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to

103a Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED, and IntervenorDefendant BLAG’s Motion to Dismiss is DENIED.
IT IS SO ORDERED. /s/ _____________________
Hon. Vanessa L. Bryant United States District Judge
Dated at Hartford, Connecticut: July 31, 2012

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APPENDIX B
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

No. 3:10-cv-01750-VLB
JOANNE PEDERSEN, ET AL., PLAINTIFFS
v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS

Aug. 17, 2012

NOTICE OF APPEAL

Defendants hereby appeal to the United States Court of Appeals for the Second Circuit from the Judgment dated August 2, 2012 (Dkt. No. 118) and the underlying Memorandum of Decision dated July 31, 2012 (Dkt. No. 116).

Date: Aug. 17, 2012

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney
General

DAVID B. FEIN United States Attorney

ARTHUR R. GOLDBERG Assistant Branch Director

105a /s/ JUDSON O. LITTLETON
JUDSON O. LITTLETON [phv04345] Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: (202) 305-8714 Fax: (202) 616-8470 Judson.O.Littleton@usdoj.gov

106a
APPENDIX C
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.
IN THE
Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., and
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,

Respondents. ________
On Petition for a Writ of Certiorari before Judgment to the United States Court of Appeals for the Second Circuit
________

PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT

________

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

COUNSEL FOR PETITIONERS JOANNE PEDERSEN, ET AL.

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act defines “marriage” for purposes of all federal statutes, regulations, and agency interpretations as the union of one man and one woman and defines “spouse” as a husband or wife of someone of the opposite sex. 1 U.S.C. § 7. As a result, with respect to more than 1,100 federal statutes, lawfully married same-sex couples are denied the benefits and responsibilities accorded to lawfully married opposite-sex couples.
The question presented is:
Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

ii
PARTIES TO THE PROCEEDING
The Petitioners are Joanne Pedersen and Ann Meitzen, Gerald V. Passaro II, Lynda DeForge and Raquel Ardin, Janet Geller and Joanne Marquis, Suzanne and Geraldine Artis, Bradley Kleinerman and James Gehre, and Damon Savoy and John Weiss. The Petitioners were the Plaintiffs in the District Court, and they are the Appellees in the Court of Appeals.
The Office of Personnel Management; Timothy F. Geithner, Secretary of the Treasury; Hilda L. Solis, Secretary of Labor; Michael J. Astrue, Commissioner of the Social Security Administration; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Douglas H. Shulman, Commissioner of Internal Revenue; Eric H. Holder, Jr., Attorney General; John Walsh, Acting Comptroller of the Currency; and the United States of America were defendants in the District Court and are Appellants in the Court of Appeals.
The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) was the Intervenor-Defendant in the District Court and is the Intervenor-Appellant in the Court of Appeals.

iii

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING ............................ii

TABLE OF AUTHORITIES........................................ v

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................... 2

STATEMENT OF THE CASE .................................... 3

A. DOMA’S ENACTMENT ................................... 3

B. PETITIONERS SUFFER FROM THEIR DISPARATE TREATMENT UNDER DOMA.................................................7

C. PROCEDURAL BACKGROUND AND THE OPINION BELOW ................................ 14

REASONS FOR GRANTING THE WRIT................ 24

I. THIS CASE RAISES QUESTIONS OF NATIONAL IMPORTANCE THAT ARE RIPE FOR REVIEW. ........................................... 24

II. THE EXCEPTIONAL IMPORTANCE OF

THE QUESTION PRESENTED AND THE

CIRCUMSTANCES

OF

THIS

PARTICULAR

CASE

WARRANT

GRANTING CERTIORARI BEFORE

JUDGMENT......................................................... 27

CONCLUSION .......................................................... 32

iv
APPENDIX A – Memorandum Opinion, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. July 31, 2012) ............................................ 1a
APPENDIX B – Judgment, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10cv-1750 (D. Conn. Aug. 2, 2012) ...................... 118a
APPENDIX C – Notice of Appeal, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. Aug. 17 2012) ...... 120a

v TABLE OF AUTHORITIES CASES Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...........4-5 Baker v. Nelson, 409 U.S. 810 (1972)................... 15 Board of Trustees of Alabama State University v. Garrett, 531 U.S. 356 (2001)................................................................ 31 Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)........................................... 17, 32 De Sylva v. Ballentine, 351 U.S. 570 (1956) .......... 4 Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979) .................................................... 4 Frontiero v. Richardson, 411 U.S. 677 (1973)................................................................ 19 Lawrence v. Texas, 539 U.S. 558 (2003) .............. 17 Massachusetts v. DHHS, 682 F.3d 1 (1st Cir. 2012).................................................... 24, 29 Plyler v. Doe, 457 U.S. 202 (1982) .................. 16, 32 United States v. Virginia, 518 U.S. 515 (1996)................................................................ 17 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................... 32 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. amend. V .............................................. 2 18 U.S.C. § 2333 ...................................................... 7 28 U.S.C. § 1254 .................................................... 23

vi 28 U.S.C. § 1254(1).................................................. 2 28 U.S.C. § 1291 .................................................... 23 28 U.S.C. § 2101(e).................................................. 2 Defense of Marriage Act, Pub. L. No. 104-
199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ....................................................... 2, 3 Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951).................................................................. 7 LEGISLATIVE MATERIALS 142 Cong. Rec. 16,799 (1996).................................. 6 142 Cong. Rec. 16,972 (1996).................................. 6 142 Cong. Rec. 17,074 (1996).................................. 6 142 Cong. Rec. 17,082 (1996).................................. 6 142 Cong. Rec. 17,089 (1996)...............................5-6 142 Cong. Rec. 22,334 (1996).................................. 6 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................... 5, 7, 31 OTHER AUTHORITIES Nancy Cott, Public Vows (2000) ............................. 3 Eugene Gressmen et al., Supreme Court Practice § 2.4 (9th ed. 2007) ....................... 23-24 I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990) ................................................................... 4 Petition for a Writ of Certiorari, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 ............................................... 25, 26

vii Petition for a Writ of Certiorari, DHHS v.
Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 ................................ 25 Petition for a Writ of Certiorari, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 ............................................ 28 U.S. General Accountability Office, GAO04-353R (2004) ................................................... 7 U.S. General Accountability Office, GAO/OGC-97-16 (1997) ..................................... 7

In the Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
Respondents, and ________ BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondent. __________
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT __________
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
Joanne Pedersen et al., the Plaintiffs in the District Court and Appellees in the Court of Appeals, respectfully petition for a writ of certiorari before judgment in a case pending on appeal to the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the District Court for the District of Connecticut granting Petitioners’ motion for summary judgment and denying BLAG’s motion to

2
dismiss, Pet. App. 1a - 117a, is published at 2012 WL 3113883, __ F. Supp. 2d __.
JURISDICTION
The judgment of the District Court was entered on August 2, 2012. Pet. App. 119a. A Notice of Appeal was filed on August 17, 2012. Pet. App. 120a121a. The case is docketed in the Court of Appeals for the Second Circuit as No. 12-3273. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) and 28 U.S.C. § 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment provides: “No person shall *** be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), 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.

3
STATEMENT OF THE CASE
Joanne Pedersen and the other 12 Petitioners are all lawfully married or widowed men and women who exercise or have exercised all of the rights and discharged all of the responsibilities of married people in the respective states of their marriages – Connecticut, Vermont or New Hampshire. Their marriages, however, are denied any federal recognition by Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), which for the first and only time in history establishes a federal definition of “marriage” and “spouse.” While Connecticut, Vermont and New Hampshire all treat the Petitioners and all other married same-sex couples identically to their married opposite-sex counterparts, DOMA takes the unitary class of married persons in these three states and divides it in two: those who are married for federal purposes and those whose marriages do not exist for any federal purpose.
A. DOMA’s Enactment
From the founding of this country until DOMA’s enactment in 1996, the states governed marriage. State laws have always borne differences as to the age of consent, the permissibility of interracial marriages, permissible degrees of consanguinity, the availability of divorce, and the recognition of common law marriages. Such conflicts sometimes led to “explosive” debates among the States, see, e.g., Nancy Cott, Public Vows 163 (2000), but the federal government never before inserted itself into the

4
debate by defining any dimension of marital eligibility for all federal purposes.
Instead, the federal government looked, as it always had, to the relevant state’s definition of marriage: a couple that was married under the law of the state was married under the laws of the federal government. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“The scope of a federal right is . . . 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 when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.”).
The federal government maintained its deference to state law notwithstanding wide diversity in the benefits available to couples. As the Fourth Circuit explained in Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979), the diversity:
produces some inequality in taxation, but it illustrates the deference Congress has demonstrated for state laws in this area and its attempts to insure that, in the application of federal tax laws, taxpayers will be treated in their intimate and personal relationships as the state in which they reside treats them.
Id. at 191, accord I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990).
In 1996, Congress disrupted this centuries-old status quo by passing DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin,

5
852 P.2d 44 (Haw. 1993), which raised the possibility that same-sex-couples could begin marrying in the near future. The House Judiciary Committee’s Report on DOMA 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.” H.R. Rep. No. 104-664 at 10-11 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15.
The House Report on DOMA acknowledged that “[t]he determination of who may marry in the United States is uniquely a function of state law,” id. at 3, reprinted in 1996 U.S.C.C.A.N. at 2907, but stating that the Committee was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’” id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916, it claimed Congressional interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging responsible child-rearing and procreation,” conserving scarce resources, and reflecting Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12, 13, 16, reprinted in 1996 U.S.C.C.A.N. at 2916, 2917, 2920 (footnote omitted).
The remarks of Representative Hyde, thenChairman of the House Judiciary Committee, were blunt but typical: “Most people do not approve of homosexual conduct . . . and they express their disapprobation through the law . . . . It is . . . the only way possible to express this disapprobation.” 142

6
Cong. Rec. 17,089 (1996). In the floor debate on DOMA, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack on God’s principles.” Id. at 16,972 (statement of Rep. Coburn); id. at 17,074 (statement of Rep. Buyer); id. at 17,082 (statement of Rep. Smith). They argued that marriage by gay men and lesbians might be “the final blow to the American family.” Id. at 16,799 (statement of Rep. Largent). Senator Helms stated:
[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.
Id. at 22,334.
Although DOMA amended the eligibility criteria for a vast number of benefits, rights, and privileges dependent upon marital status, the relevant Congressional committees did not engage in any meaningful examination of the scope or effect of the law. Neither chamber of Congress heard testimony from economists, historians, sociologists or specialists in child welfare. Congress did not solicit relevant agency heads nor endeavor in any other way to understand the scope of the Act. Indeed, the

7
House Report characterized Section 3 as a “narrow federal requirement.” H.R. Rep. No. 104-664 at 30, reprinted in 1996 U.S.C.C.A.N. at 2935.
But DOMA neither was nor is “narrow.” Since its passage, DOMA has implicated more than 1,100 federal statutory provisions, extending from Social Security to taxation and health care, from employee benefits and spousal privileges in federal court to terrorism victim recovery. See, e.g., U.S. General Accountability Office, GAO-04-353R (2004); U.S. General Accountability Office, GAO/OGC-97-16 (1997); 18 U.S.C.§ 2333.
Not surprisingly, defining a term for the entirety of the United States Code is uncommon, and at the time of DOMA, no new definitions had been added to the Dictionary Act, and the existing definitions had not been amended, for nearly half a century. See Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951) (substituting “used” for “use” in fourth paragraph of 1 U.S.C. § 1).
B. Petitioners Suffer From their Disparate Treatment Under DOMA
DOMA compels all federal agencies to disregard the lawful marriages entered into by each of the Petitioners, who married after long and dedicated relationships to each other. As a class-based enactment, DOMA is a federal declaration that the Petitioners’ marriages are not real marriages and merit no respect under any federal law. This causes “a great deal of stress and worry,” is “extremely disheartening” and forces individuals to “disregard [their own] marital status.” It makes the Petitioners

8

feel “singled out for disrespect” and “like second-class citizens” with marriage that are “not respected and valued,” and that don’t “mean what [they] should, or what other people’s marriages mean.” It “artificially divides [their] family” and conveys to their children “that our marriage and family and don’t count” in the eyes of their government.1

For the thirteen Petitioners, there is no dispute

that DOMA denies them equal access to particular

federal programs.2

DOMA concretely and

continuously harms them and their children. The

record reveals the following harms:

Joanne Pedersen and Ann Meitzen: Joanne Pedersen, a retired civilian employee of the Department of the Navy, Office of Naval Intelligence with over 30 years of service, and Ann Meitzen, a supervisor for a case management agency for the elderly and disabled, have been a committed couple since 1998 and married in Connecticut on December 22, 2008, their 10th Anniversary. Joanne sought to add Ann to her Federal Employee Health Benefit (FEHB) insurance coverage, but her request was

1 The quotations are taken from unrebutted Affidavits from the Plaintiffs (now Petitioners) in Support of their Motion for Summary Judgment. Other further undisputed facts are drawn from the Amended Complaint.
2See nn. 3-6, 8-9 and 11 infra. Although intervenors also advanced in the District Court a construction of the tax code provision on joint filing that, like DOMA, would deny a “married” filing status only to married same sex couples, the District Court correctly rejected their alternate statutory argument. See Pet. App. 20a-24a.

9
denied because of DOMA.3 Ann suffers from a chronic lung condition. She and Joanne were harmed by DOMA because, without access to Joanne’s FEHB coverage, Ann had to delay her retirement because of the high cost of private insurance. This impacted Ann’s health and their quality of life.
Gerald V. Passaro II: Gerald (“Gerry”) V. Passaro II, a disabled hairdresser, is the surviving spouse of Thomas (“Tom”) Buckholz, who was a senior chemist at The Bayer Corporation (Bayer) prior to his untimely death in January 2009 at the age of 47. At that point, Gerry and Tom had been a committed couple for over 13 years and had married in Connecticut on November 26, 2008. Gerry had been Tom’s sole caretaker, mostly at home, during the 18 months of Tom’s struggle with lymphoma. When Tom died, Gerry learned from Bayer that, because of DOMA, although Tom was fully vested in Bayer’s defined benefit pension plan, he was not entitled to any pension benefit, including the Qualified Preretirement Survivor Annuity (QPSA) otherwise mandated by ERISA for surviving spouses. In addition, Gerry applied for, and was denied, the lump-sum Social Security death benefit of $255 on
3 Joanne first sought FEHB coverage for her wife in 2009 within the 60-day period in which to change enrollment due to marriage. That request was denied. When she attempted to reapply for benefits in 2010 during open enrollment season, the online system would not accept her entries, and agency staff confirmed that Ann was not eligible as Joanne was of the same sex.

10
the ground that “your marriage does not meet the requirements under Federal law for payment ….”4
Raquel Ardin and Lynda DeForge: Raquel Ardin, a Postal Service worker for 25 years and now on disability retirement since 2005 as a result of a neck injury sustained during her military service in the U.S. Navy, and Lynda DeForge, a current Postal Service employee of more than 25 years, have been a committed couple for over 30 years since 1977 and married in Vermont since September 7, 2009. Because of degenerative arthritis in her neck, Raquel needs regular, quarterly treatments in Connecticut for which Lynda’s presence is required. Lynda is eligible under the Federal Medical Leave Act (FMLA) and, therefore, applied for FMLA leave one day every three months to care for her spouse during these treatments. The Postal Service denied that leave because of DOMA.5 In addition, Raquel and Lynda are each individually enrolled in the FEHB program for “Self Only” coverage. Lynda has sought, during open enrollment, to change her status from “Self Only” to “Self and Family” to include Raquel as it would save the couple money to be covered under a
4 Gerry received two denial letters from the Social Security Administration on January 19, 2011 and March 22, 2011, respectively.
5 Lynda received a letter from the Postal Service, dated May 13, 2010, stating that her request for leave was denied “as same sex marriage is not recognized by Federal law under the Defense of Marriage Act.”

11
single plan. The request was denied because of DOMA.6
Janet Geller and Joanne Marquis: Janet Geller and Joanne Marquis are both retired New Hampshire school teachers, who together taught for over 68 years. They have been a committed couple for well over 30 years, since 1979; and they were married in New Hampshire on May 3, 2010. Both Janet and Joanne receive a pension through the New Hampshire Retirement System (NHRS). However, because Joanne had over 30 years of public school service, she is qualified for a medical cost supplement – to help pay for the Medicare Part B supplemental coverage – for herself and her spouse.7 Nonetheless, when Joanne applied for the spousal benefit ($375.66/month for Janet) following their marriage, the request was denied because of DOMA.8
Geraldine and Suzanne Artis: Geraldine Artis, currently a student pursuing a new career in counseling, and Suzanne Artis, a librarian, have shared a committed partnership for 18 years and were married in Connecticut on July 11, 2009.
6 On November 8, 2010, Lynda sought to apply using the online PostalEASE system, which advised her that “same sex spouses are not considered eligible family members under FEHB.”
7 Janet is not eligible for the benefit because she does not have the requisite 30 years of service in the public sector.
8 The NHRS advised Joanne that DOMA controls the meaning of spouse under the Internal Revenue Code and that to act contrary to the Code would cause the NHRS to lose its tax qualified status.

12
Geraldine and Suzanne are raising three boys – one now 14 and twins who are 12. Despite being married for the 2009 tax year, Geraldine and Suzanne were forbidden by DOMA from filing their federal income tax return as Married Filing Jointly. Instead, they have been required by DOMA to file as Head of Household (Suzanne) and Single (Geraldine). Had they been permitted to file as the married couple that they are, they would have paid $1,465 less in federal income tax for 2009.9 The IRS formally denied their request by letter dated January 19, 2011, noting that “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.”
Bradley Kleinerman and James Flint Gehre: Bradley (“Brad”) Kleinerman, a human resources director for CIGNA Healthcare, and James Flint Gehre (“Flint”), a stay-at-home parent, have been a committed couple for more than 20 years since 1991. They married on the 18th Anniversary on March 6, 2009 in their home state of Connecticut. Brad and Flint have three sons – ages 21, 20 and 11. They too
9 For the tax year 2009, Geraldine and Suzanne submitted to the IRS an amended federal income tax return on IRS Form 1040X, Amended U.S. Individual Income Tax Return, with requests for refunds representing the difference between what the couple had paid as taxes and what the couple would have paid as joint filers. With that filing, they attached a Form 8275 Disclosure Statement and a Form 8275-R, Regulation Disclosure Statement to explain the changes to their earlier filed federal income tax returns. As a precondition to filing suit, each of the other Petitioners with tax-based harms took these same steps for the tax year at issue for them.

13
have been required to pay more in federal income tax for tax year 2009 because DOMA forbids them from filing as Married Filing Jointly. Instead they paid an additional $2,085 in federal income tax 2009 (and substantially more in 2010) because Brad could only file as Head of Household.10
Damon Savoy and John Weiss: Damon (“Jerry”) Savoy, an attorney with the Office of the Comptroller of the Currency (OCC) for 20 years, and John Weiss, an interior designer but currently a full-time parent, have been in a committed relationship for 13 years and married in their home state of Connecticut on October 9, 2010. They are raising three adopted children (now ages 13, 11 and 3). Jerry has an FEHB health insurance Self and Family plan that covers himself and the couple’s three children. When John’s COBRA coverage from his prior employment expired in July 2010, he had difficulty obtaining insurance on the private market because of his preexisting condition of diabetes. Following their marriage, in November 2010, Jerry sought to add John to his existing Self and Family plan. That request was denied because of DOMA,11 leaving John in the private insurance market where he has been paying at least $449 per month for health insurance.
10 Flint had no income in 2009 and thus was not required to file any federal return as an individual.
11 Jerry received his first denial from the Anthem Blue Cross Blue Shield representative. Denial was confirmed by the Human Resources Department of the OCC, which explained that coverage is governed by OPM rules which reference DOMA in determining eligible family members.

14
C. Procedural Background And The Opinion Below
The Petitioners filed their Complaint in the District Court of Connecticut on November 9, 2010, alleging that DOMA’s discrimination among married couples violates the equal protection guarantee of the Fifth Amendment to the Constitution. Pedersen v. Office of Personnel Management, et al., 3:10-cv-1750 (VLB), Dkt. No. 1.12
On February 23, 2011, the President and Attorney General notified Congress (and subsequently the District Court on February 25, 2011, see Dkt. No. 39) of their conclusion that DOMA is unconstitutional and violates the equal protection guarantee of the Fifth Amendment. See Dkt. No. 39. The Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) subsequently moved on April 26, 2011 to intervene for a limited purpose, Dkt. No. 48, and the District Court granted that motion “to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. § 7” on May 27, 2011. Dkt. No. 55.
Following discovery, Petitioners moved for summary judgment with supporting plaintiff, expert and counsel affidavits on July 15, 2011, Dkt. Nos. 6076; and BLAG moved to dismiss, Dkt. Nos. 80-83.13 With subsequent opposing, reply and surreply
12 A First Amended Complaint was filed on January 14, 2011. Dkt. No. 33.
13 The Federal Defendants also filed a Motion to Dismiss. Dkt. No. 85.

15
memoranda of law and supplemental affidavits, Dkt. Nos. 94-100 and 102-104, briefing was concluded on dispositive motions; and the matter was submitted to the court for decision.
The district court issued its decision on July 31, 2012, granting the motion for summary judgment, denying BLAG’s motion to dismiss, and holding that DOMA violates the Fifth Amendment. Pet. App. 1a117a. After concluding that “classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny,” the court found it unnecessary to apply such scrutiny to DOMA, concluding that “it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.” Id. at 86a. The court concluded that, “having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision.” Id. at 117a.
In analyzing the Petitioners’ Equal Protection claim, Judge Bryant began with the question of the appropriate level of scrutiny.14 To BLAG’s argument
14 As a preliminary matter, the court rejected BLAG’s argument that the constitutionality of DOMA had already been decided by Baker v. Nelson, 409 U.S. 810 (1972), correctly noting that Baker is, by definition, of limited precedential value and did not address the same question as presented in the current litigation. Pet. App. 24a - 27a. Specifically, the court noted that this case involves neither the right of states to authorize marriages of same-sex couples nor whether there is a

16 that it would be a “radical step” to find sexual orientation a suspect classification when this Court has yet to reach such a holding and several Courts of Appeals have held that it is not, the court correctly noted that the question is open in the Second Circuit and has yet to be resolved by this Court. Id. at 32a33a.
Furthermore, while acknowledging reason for restraint in identifying new suspect classifications, the court noted that, at the same time, the Equal Protection Clause serves to restrain legislative action that is “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Id. at 38a (quoting Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (internal quotation marks omitted)). To that end, a court “must not be tempted to tie the conception of judicial restraint to historic notions of equality.” Id. at 39a. Given the state of the law and the import of equal protection guarantees, the court saw its duty to “meaningfully assess” whether “sexual orientation constitutes a suspect or quasi-suspect class.” Id.
The court then engaged in what is certainly the most comprehensive analysis yet undertaken by a federal court in a DOMA case as to the factors variously assessed by this Court on the question in the context of a detailed record and sustained argument by the parties. Id. at 39a-86a.
fundamental right to marry where, as here, the Petitioners were all validly married by their home states. Id. at 26a-27a.

17
As the court noted, this Court has put its greatest emphasis on two factors: (1) whether a group has suffered a history of invidious discrimination; and (2) whether the characteristics that distinguish the group’s members bear no relation to their ability to contribute to society. Id. at 32a. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985); United States v. Virginia, 518 U.S. 515, 531-32 (1996).
This court has previously recognized that gay men and lesbians have historically been subject to discrimination. Lawrence v. Texas, 539 U.S. 558, 571 (2003) (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral”). Nonetheless, the court below was careful to assess BLAG’s argument to the contrary. To BLAG’s argument that the history of discrimination is the “relatively short-lived” product of the twentieth century, the court examined the extensive evidence in the record and concluded:
the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can be seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
…

18
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination.
Id. at 43a, 49a.
The court below also explained, in detail, why
Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.
Id. at 53a.
Therefore, the court determined that this factor “weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.” Id.
Recognizing that whether a characteristic is “defining or immutable” is not a necessary or essential factor for this Court in triggering heightened scrutiny, the court below nonetheless carefully examined the law, the record and the arguments on this issue, id. at 54a-69a, concluding that Ninth Circuit precedent on immutability was:

19
persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom.
Id. at 69a.
Turning to the last possible, but non-essential, factor – minority status or lack of political power – the court below noted two fundamental points: (1) there is no dispute “that gay men and lesbians are both nationally and locally a minority”; and (2) there is no requirement that the group have a “total lack of political power.”15 Id. at 71a, 73a-74a.
15 The district court noted that this factor gets less weight given that gender is quasi-suspect while the group is neither a minority nor powerless. See Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (acknowledging that “women do not constitute a small and powerless minority”). Pet. App. at 74a.

20
Recognizing that the proper standard is whether discrimination against the group is unlikely to be rectified soon by legislative means and that “effecting widespread change through the majoritarian process will be onerous,” Id. at 75a, the court rejected all of BLAG’s arguments that gay people are politically powerful, noting that the examples BLAG supplied were limited and anecdotal.
Ultimately, the court concluded, while gay men and lesbians have achieved “modest successes,” they still face “pervasive discrimination in the political arena” and lack meaningful political power. Id. at 83a.
Based on this extensive analysis, the court found that sexual orientation classifications are entitled to heightened judicial scrutiny.
Nonetheless, since this Court has been able to resolve past cases involving sexual orientation discrimination applying rational basis review, the district court analyzed DOMA under a traditional rational basis review standard. Id. 84a-86a.
Again, the court below conducted a thorough analysis of every rationale offered in support of DOMA – whether articulated by Congress in 1996 or developed post hoc in BLAG’s defense of the statute.
First, both Congress and BLAG put forth the proposition that DOMA is justified by an interest in maintaining “traditional marriage” and the link between marriage and the bearing and raising of children. Id. at 90a-91a. The court carefully unpacked claims by BLAG based on the experience

21
of Scandinavian countries and demonstrated that there is no support for any rational connection between denying federal benefits to married samesex couples and the objective of discouraging extramarital procreation. Id. at 94a-96a. In addition, the court observed that DOMA has no impact on the ability of same-sex couples to have and rear children, while inflicting “significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections.” Id. at 96a-98a.
Second, as to the goal of ensuring that children have parents of both sexes, the court found DOMA both too narrow and too broad to be rationally related to this goal since childless different-sex couples qualify for federal marital benefits while DOMA reaches many laws unrelated to rearing children. Id. at 101a-102a. Moreover, DOMA does not in any way impede same-sex couples from having and raising children; and if the goal is to discourage same-sex couples from doing so, serious constitutional questions are raised regarding the burdening of a protected fundamental right. Id. at 102a-103a.
Third, as to defending traditional notions of morality, beyond noting, as have other courts, that an effort to reinforce principles of morality cannot withstand rational basis review in light of Lawrence, the court noted that there is no uniform position in the United States today on the morality of marriage for same-sex couples such that to uphold DOMA on morality grounds alone would “fly in the face of the

22
fundamental principles of religious freedom and liberty” of our country. Id. at 104a-106a.
Fourth, as to the asserted objective of preserving government resources, the court noted that the only evidence in the record demonstrated that there was no basis in reality for this argument. Id. at 106a108a. In addition, the court applied settled law from this Court that
“more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Id. at 108a.
Finally, the court rejected BLAG’s justifications of “uniformity” and “caution.” As to caution, the court wrote:
Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see DKT. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to

23
withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.
Id. at 114a.16
As to claimed interests in uniformity, consistency and ease of administration of federal law, the court held that the justifications were not rational as DOMA: (1) adds a new element of complexity where previously the only question was whether a couple was “validly married under the laws of a state”; and (2) creates inconsistency in the distribution of federal marital benefits by excluding one category of marriages.17 Id. at 114a-116a.
The government defendants have filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. Pet. App. 120a-121a. The court of appeals has jurisdiction pursuant to 28 U.S.C. § 1291. The appeal was docketed as No. 123273.
This case is, therefore, “in the court[] of appeals” within the meaning of 28 U.S.C. § 1254. See Eugene
16 The court also found that caution is “simply a modified articulation” of the justification of tradition that the court had already rejected as insufficient. Pet. App. at 115a.
17 The court also addressed the asserted Congressional interest in protecting state sovereignty, correctly noting that that interest was only relevant to Section 2 of DOMA, which is not in issue in this litigation. Pet. App. at 109a-112a.

24
Gressmen et al., Supreme Court Practice § 2.4, at 8384 (9th ed. 2007).
REASONS FOR GRANTING THE WRIT
I. This Case Raises Questions Of National Importance That Are Ripe For Review.
This case raises questions of national importance. The denial of federal recognition of marriages mandated by section 3 of DOMA “affects a thousand or more generic cross-references to marriage in myriad federal laws.” Massachusetts v. DHHS, 682 F.3d 1, 6 (1st Cir. 2012). More than 100,000 samesex married couples are disadvantaged; and the states “that choose to legalize same-sex marriage” also suffer “potentially serious adverse consequences.” Id. 6 and n.3.
Therefore, although the Petitioners agree with the district court’s decision in this case that DOMA is unconstitutional, the Petitioners respectfully request that the Court grant this petition for review in order that the question of the constitutionality of DOMA may be authoritatively decided by this Court.
There are a number of reasons why review is appropriate at this time. First, as the Federal Defendants have noted in seeking review in this Court of the First Circuit’s decision in Massachusetts v. DHHS where DOMA has been held unconstitutional:
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 has yet passed on the

25 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 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); Robin 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). Petition for a Writ of Certiorari at 13-14, DHHS v. Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 (“DOJ Pet.”).18
18 BLAG makes the identical point in its petition for review of the First Circuit’s decision. Petition for a Writ of Certiorari at

26

For this reason alone, the arguments for a grant of review in this case are strong. Second, and in addition, review is appropriate now as there is a great practical need for an authoritative decision from this Court. As BLAG has noted, there have been conflicting decisions on DOMA’s constitutionality in various federal courts throughout the country, and additional DOMA challenges are pending. BLAG Pet. 19-21.

Moreover, again as noted by BLAG, while the Administration is not defending DOMA, it is continuing to enforce the statute, with the result that litigation over DOMA’s constitutionality continues to develop throughout the country as cases arising out of the enforcement of the statute continue to recur. BLAG Pet. 17.

Third, as noted in the Statement above, each of

the Petitioners demonstrates existing and ongoing

economic harms as well as other burdens on their

valid and existing marriages. Any continued delay

in the resolution of the clear constitutional question

presented by this case and this petition for review

only exacerbates those harms unnecessarily for these

Petitioners and for all other legally married same-sex

couples throughout the country.

Moreover,

continued delay only continues the considerable

difficulties experienced by state and local

governments and private businesses that are

compelled to treat married same-sex couples

differently from other married couples in the myriad

17-18, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 (“BLAG Pet.”).

27
circumstances that arise in the course of day-to-day life.
Finally, as multiple courts have recently recognized, there are compelling arguments supporting the view the Congress overstepped its constitutional bounds when it decided for the first time to deny all recognition to a single class of statesanctioned marriages. This Court should grant review to affirm that Section 3 of DOMA violates the guarantees of equal protection secured by the Fifth Amendment.
II. The Exceptional Importance of the Question Presented and the Circumstances of this Particular Case Warrant Granting Certiorari Before Judgment.
As the Federal Defendants have noted in seeking certiorari before judgment in another DOMA challenge pending in a court of appeals,
Under this Court’s rules, a petition for a writ of certiorari before judgment in a case pending in a court of appeals will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This Court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions. See, e.g., United States v. Fanfan, 543 U.S. 220, 229 (2005)

28

(constitutionality of mandatory applications of

the United States Sentencing Guidelines);

Gratz v. Bollinger, 539 U.S. 244, 259-60 (2003)

(constitutionality

of

race-conscious

undergraduate

admissions

program);

Mistretta v. United States, 488 U.S. 361, 362,

371 (1989) (constitutionality of federal

Sentencing Guidelines); Dames & Moore v.

Regan, 453 U.S. 654, 667-668 (1981) (validity

of Iran hostage agreement); United States v.

Nixon, 418 U.S. 683, 686-687 (1974) (validity

of subpoena to the President); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584

(1952) (validity of the President’s steel seizure

order); Ex parte Quirin, 317 U.S. 1, 19-20

(1942) (validity of President’s assignment to a

military tribunal of jurisdiction over the trial

of belligerent saboteurs). See generally James

Lindgren & William R. Marshall, The

Supreme Court’s Extraordinary Power to

Grant Certiorari Before Judgment in the

Court of Appeals, 1986 Sup. Ct. Rev. 259.

Petition for a Writ of Certiorari at 14, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 (“DOJ Golinski Pet.”).

For the reasons stated in Section I, above, the question presented here is one “of exceptional public importance” that “call[s] for definitive and timely resolution by this Court” such that “the petition for a writ of certiorari before judgment in this case should be granted.” DOJ Golinksi Pet. 13-14.

29
In addition, this particular case is an exceptionally good vehicle for this Court’s review. First, the Petitioners in this case have been disadvantaged by DOMA in a wide variety of different ways that demonstrate the breadth of DOMA’s impact on a range of important, large federal programs (e.g., federal income tax, federal employee and retiree workplace benefits, and Social Security benefits) and important federal statutes (e.g., ERISA and FMLA). See Massachusetts v. DHHS, 682 F.3d at 11 (“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”). DOMA is not a narrow statute that discriminates against gay men and lesbians in discrete contexts, but rather a broadbased enactment whose effects pervade the entire U.S. Code. Because they have been disadvantaged in so many different ways, the Petitioners in this case best represent the range of DOMA’s effects on married gay men and lesbians.
Moreover, there are no collateral or procedural issues or obstacles of any kind in this case; all the harms caused to the Petitioners are clearly and solely the consequence of the application of DOMA; and, as such, the question of the constitutionality of DOMA as a matter of equal protection guarantees is squarely presented for review.19
19 As discussed in note 2 supra, although BLAG attempted to argue below that the tax code would independently operate to

30
Second, in reviewing the constitutionality of DOMA, this Court should address the proper standard of review for classification based on sexual orientation and, in particular, whether heightened scrutiny applies to such classifications.
This Court has not decided what level of scrutiny applies to laws that discriminate on the basis of sexual orientation. The Second Circuit has also not ruled on the question. As a result, the district court, as noted above, recognized a duty, in light of the state of the law and the import of equal protection guarantees, to meaningfully assess whether sexual orientation is a suspect or quasi-suspect class. Pet. App. 38a-39a. Based upon the most complete record yet assembled in a DOMA case raising the question, as well as full briefing by the parties, the court below engaged in the most thorough review by any federal court to date in a DOMA case as to the proper analysis, under this Court’s guiding precedents, of the question of the proper standard of review for sexual orientation classifications. See id. at 39a-86a.
As a consequence, this Court can address the question of the standard of review in this case with confidence that the issue has been fully and exhaustively aired in preparation for this Court’s resolution.
have the same effects as DOMA on some of the Petitioners, the District Court rejected BLAG’s construction of the statute. See Pet. App. 20a-24a. And in any event, BLAG’s statutory argument would not prevent the constitutionality of DOMA from being squarely presented in this case, due to the large number of Petitioners disadvantaged by DOMA in other ways.

31
Third, as described above, the court below also engaged in the most thorough review to date of every conceivable rationale put forth in support of DOMA – whether advanced at the time of enactment in 1996 by Congress or as developed post hoc by BLAG in the current plethora of cases challenging DOMA. The district court articulated each and every such asserted rationale and analyzed each and every argument put forth in support of, and opposition to, those justifications. Id. at 86a-117a. It concluded that there is no rational justification for the federal government not to recognize valid state marriage, just because the married couple is a same-sex couple. Again, as a result, this Court could not have a more complete record to assess the merits of the justifications asserted in defense of DOMA.
The lack of any rational explanation for DOMA leads to the conclusion that Congress intended DOMA to do exactly what Congress said it intended to do – to reflect “moral disapproval of homosexuality.” H. Rep. No. 104-664 at 15-16, reprinted in 1996 U.S.C.C.A.N. at 2919-20. This purpose is clear on the face of the House Report and the Congressional Record. It is also the only explanation for DOMA that makes any sense. Whether animated by moral disapproval toward gay men and lesbians, “insensitivity,” or an instinctive reaction against those who “appear[ed] to be different,” such impermissible prejudices are not a valid purpose for a law. See Board of Trustees of Ala. State Univ. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J. and O’Connor, J., concurring). Congress enacted a statute whose object was to

32
subject gay men and lesbians to different, and lessfavorable treatment, but “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); Cleburne, 473 U.S. at 448. A “punitive discrimination based on status” is “impermissible under the Equal Protection Clause.” Plyler, 457 U.S. at 240 (Powell, J. concurring).
This case provides an excellent vehicle for reviewing the constitutionality of this troubling and harmful law.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari before judgment should be granted.

33

Respectfully submitted,

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

Counsel for Petitioners Joanne Pedersen, et al.

August 21, 2012

1a
Appendix A
JOANNE PEDERSEN, et al., Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants, v. BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF
REPRESENTATIVES, Intervenor-Defendant.
CIVIL ACTION NO. 3:10-cv-1750 (VLB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
July 31, 2012, Decided
July 31, 2012, Filed
JUDGE: Hon. Vanessa L. Bryant, United States District Judge.
OPINION
MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO DISMISS [Dkt. #80]
Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently

2a
enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the plethora of federal laws which rely on DOMA’s definitions. Currently pending before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the Plaintiffs asserting that they are entitled to judgment as a matter of law, along with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the Bipartisan Legal Advisor Group of the United States House of Representatives, (“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both motions seek ultimate resolution of this matter, the Court will consider and review the motions simultaneously, addressing the fundamental question of whether or not Section 3 of DOMA can withstand the applicable level of constitutional scrutiny.
I. Factual Background
A. History of DOMA
DOMA was enacted on September 21, 1996 and signed into law by President Clinton after passing both houses of Congress with large majorities. Section 3 of DOMA, the provision which is the subject of the Plaintiffs’ constitutional challenge, codifies the following definition of the terms “marriage” and “spouse” as a matter of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative

3a
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. As expressly stated in the House Judiciary Committee Report on DOMA, DOMA was drafted as “a response to a very particular development in the State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited state-sanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and […] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis

4a
under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newlycoined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage, ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new. items/d04353r.pdf.
2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).

5a
of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.

6a
“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Federation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9, 220 U.S. App. D.C. 89 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913). Under these regulations, those eligible for coverage may elect to enroll for individual coverage, or for both individual and family coverage. Id. (citing 5 U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to “the spouse of an employee or annuitant [or] an unmarried dependent

7a
child under 22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the demands of the workplace with the needs of families” by “entitl[ing] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible employees to take up to twelve work-weeks of unpaid leave during any twelvemonth period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the Department of Labor to implement the FMLA define the term “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).

8a
marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. §2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(i), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which

9a
impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that definedbenefit pension plans are subject to both ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire
1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 14344, 957 A.2d 407 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and

10a
one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 27-15 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex

11a
couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
2. Same-Sex Marriage in Vermont
On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224, 744 A.2d 864 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission,

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http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire
On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into law on May 31, 2007. 2007-2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.h tml.
C. Plaintiffs’ Factual Backgrounds
The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on

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their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3].
Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶67. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by samesex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.

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access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is

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required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of

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service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household.

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Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for and purchase health care coverage on the private insurance market. Id. at ¶¶66-67. Savoy applied to have his husband added to his existing health plan under the FHEB Program and his application was denied. Id. at ¶¶69-70.

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II. Standards of Review
A. Motion to Dismiss
“‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ “ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption

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of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d

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Cir.2006) (internal quotation marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.3:03cv481, 2004 U.S. Dist. LEXIS 22112, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F. Supp. 2d 28, 2011 WL 4396704 at *6 (D. Conn. 2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
III. Discussion
A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns
BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj. to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. §6013, does not on its own extend

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to same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a “husband and wife may make a single return jointly of income taxes...” 26 U.S.C. §6013(a). BLAG argues that these Plaintiffs lack standing “because the joint filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases’ and ‘Controversies’ and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’ – injury-in-fact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in

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federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise ... [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26 U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s gender-neutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a

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category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends

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on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case
BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and

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that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in

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the record,’... are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182, 99 S. Ct. 983, 59 L. Ed. 2d 230 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding samesex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth

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Amendment’s Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequentlyenacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S.

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202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (internal quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975)); See also Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)).

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The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the

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burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class
The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982).

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Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships.” See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members’ control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (Marshall, J. dissenting)

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(acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification
BLAG contends that sexual orientation has never been viewed as a suspect or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to

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classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasi-suspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications

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based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class ... Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. at 640 n.1; Lawrence v. Texas, 539 U.S. 558, 589 n.1, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). In view of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of

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California noted “[w]hen the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can ... be criminalized, homosexuals cannot constitute a suspect or quasisuspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’

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claim that gay persons are not a [suspect or] quasisuspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); BenShalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military’s mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986)); see also Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) (acknowledging that “judicial deference to such

37a congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged”). Considering the inimitable circumstances attending military regulations and the uniquely deferential approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on Bowers, which was rejected in Lawrence, and relied on analyses in the deferential military context rather than the more discretionary civilian context, the precedential import of such authority is unpersuasive, particularly given the fact that the Second Circuit has not had an opportunity to consider the matter.
5The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.

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The Court is mindful of the Supreme Court’s admonition that “‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne, 473 U.S. at 441). The Supreme Court has to date only recognized a handful of suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation

39a
omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors
At the outset, this Court is guided by Justice Thurgood Marshall’s approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of

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classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ … must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations omitted). Thus the Court’s analysis will be cognizant of social, cultural and political perspectives grounded in experience as opposed to abstract logic and an awareness that there is likely no single talisman that signals which groups are the subject of classifications offensive to the principle of equal protection.
i. History of Discrimination
The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for

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centuries there have been powerful voices to condemn homosexual conduct as immoral’” and that “lesbians and gay men have suffered a long history of discrimination and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group.
BLAG argues that the history of discrimination against homosexuals is relatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].

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Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey. html (“It’s important to note that there’s been a long history in the regulation of sexual acts of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited
6BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert’s opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).

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sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as

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homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of

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homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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

46a
(December 15, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].

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Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 1186, at 10 (2009)).
The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination...”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinski, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to

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reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of homosexuality is increasing, gay men and lesbians have endured a long history of discrimination, both official and private.” Able v. United States, 968 F.Supp. 850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The Able court noted that discrimination against homosexuality began in the second half of the twelfth century and that the “‘earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages’ were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuality.” Id. at 852.

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In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
ii. Ability to Contribute to Society
Plaintiffs argue “there can be no credible dispute about whether sexual orientation bears a relation to one’s ‘ability to perform or contribute to society.’” [Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether

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homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.

Certainly the recent repeal of “Don’t Ask Don’t

Tell” and the military’s contemporaneous recognition

of the long history of valiant honorable service of

homosexual servicemen and women attests to the

fact that homosexuals have made the ultimate

contribution to society. Defense Secretary Leon

Panetta recently highlighted these contributions and

“thank[ed] gay and lesbian service members, LCGT

civilians, and their families for their dedicated

service to our country.” Leon Panetta, Secretary

Penetta Video Message for Lesbian, Gay, Bisexual,

Transgender Pride Month from the Pentagon, U.S.

Dep’t.

of

Def.

(June

15,

2012),

http://www.defense.gov/transcripts/transcript.aspx?tr

anscriptid=5062. Secretary Panetta stated that

“[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you

faithfully served your country with professionalism

and courage. And just like your fellow service

members, you put your country before yourself...The

pursuit of equality is fundamental to the American

story. The successful repeal of ‘Don’t Ask, Don’t Tell’

proved to the Nation that just like the country we

defend, we share different backgrounds, different

values, and different beliefs – but together, we are

the greatest military force in the world.” Id.

In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or

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vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinski, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their samesex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation ... bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society ... If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that

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race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or

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physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this factor weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.

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iii. Defining or Immutable Characteristics
Another relevant consideration is whether the characteristic that defines the class as a discrete group is immutable or otherwise not within the member’s control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986)). It does not appear that this factor is necessary to trigger heightened scrutiny in view of the Supreme Court’s recognition of suspect class to groups with ostensibly mutable characteristics. The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977). Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (acknowledging that illegitimate child may be legitimated by father). Further as the Kerrigan court astutely observed “not infrequently, the United States Supreme Court has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of a particular class.” Kerrigan, 289 Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 20, 25, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971)). Consequently, immutability is not an essential requirement but merely one indication that the classification reflects

55a
“deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20; Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806, 108 S. Ct. 52, 98 L. Ed. 2d 17 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peerreviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be

56a

successful and involve some risk of harm.” Id. at ¶26

(citing APA Task Force on Appropriate Therapeutic

Responses to Sexual Orientation, 2009, Report of the

Task

Force,

available

at

http://www.apa.org/pi/lgbt/publications/therapeutic-

response.pdf). The American Psychiatric Association,

American Psychological Association, American

Counseling Association, National Association of

Social Workers and the American Academy of

Pediatrics all “have adopted policy statements

cautioning professionals and the public about these

treatments.” Id. at ¶27. See also Perry v.

Schwarzenegger, 704 F.Supp.2d at 966 (“No credible

evidence supports a finding that an individual may,

through conscious decision, therapeutic intervention

or any other method, change his or her sexual

orientation.”). Lastly, studies have also indicated

that the majority of gay men and lesbians report that

they experienced no choice or little choice about their

sexual orientation. [Dkt. # 73, Peplau Aff., ¶25]

(citing 2010 national survey conducted with

representative sample of more than 650 self-

identified lesbian, gay and bisexual adults, 88% of

gay men reported that they had “no choice,” and 7%

reported “very little choice” while 68% of lesbians

responded they had “no choice at all” and 15%

reported having “very little choice.”).

Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied

57a

by Plaintiffs’ own experts...These differing

definitions show that these terms are amorphous and

do not adequately describe a particular class.” [Dkt.

#82, p. 22-23]. Although there might be subtle

semantic distinctions between each of these terms

from an academic perspective, each term is

principally defined as pertaining to same-sex

attraction or sexual behavior and could not be

understood without reference to this elemental

concept. In fact, the colloquial definitions of “gay,”

“lesbian” and even “sexual orientation” are each

defined by reference to “homosexual” which is

defined as sexual desire or intercourse between

individuals of the same sex. Merriam Webster

defines “Homosexual” as “of, relating to, or

characterized by a tendency to direct sexual desire

toward individuals of one’s own sex” or “of, relating

to, or involving sexual intercourse between

individuals of the same-sex.” Homosexual Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/homosexual (last visited July

27, 2012). “Gay” is defined as “homosexual;

especially: a homosexual male.” Gay Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/gay (last visited July 27,

2012). “Lesbian” is defined as “a woman who is

homosexual.” Lesbian Definition, MERRIAM-

WEBSTER.COM,

http://www.merriam-

webster.com/dictionary/lesbian (last visited July 27,

2012). Lastly, “sexual orientation” is defined as “the

inclination with respect to heterosexual, homosexual

and bisexual behavior.” Sexual orientation definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

58a

webster.com/medical/sexual%20orientation

(last

visited July 27, 2012). Although scholars may

quibble over subtle differences in terminology, it is

clear that none of these terms are neither amorphous

nor incapable of describing a particular class. Indeed,

the colloquial understanding of each of these terms

readily describe a class that is defined by same-sex

attraction and sexual behavior. BLAG’s contention

that “Plaintiffs’ claims run headlong into the

differing definitions of the terms” risks elevating

abstract logic over experience. Here experience

palpably demonstrates that each of these terms is

capable of describing a particular class with

precision and clarity.

BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep.,

59a
25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be

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immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims

61a
about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may

62a
comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having

63a
only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring

64a
characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev’d, 54 F.3d 261 (6th

65a
Cir.1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2990, 177 L. Ed. 2d 838 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than

66a
conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct ... [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to ... the development of human personality...” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and

67a
the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual … being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinski, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding

68a
that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly, immutability should “describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them.” Id.

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This Court finds the reasoning of the Ninth Circuit to be persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom. On this basis as well, this factor weighs in favor of the application of heightened scrutiny.
iv. Minority Status and Political Powerlessness
The final factor courts consider is whether the subject group is “a minority or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (internal quotation marks omitted). “This factor examines relative political power and seeks the answer the question whether the ‘discrimination is unlikely to be soon rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting Cleburne, 473 U.S. at 440).

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Courts place less weight with respect to this fourth and final factor considering that the Supreme Court has recognized gender as a quasi-suspect class despite the fact that the group was neither a minority nor truly politically powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging that women “do not constitute a small and powerless minority”); see also Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the [political powerlessness] test pales in comparison to the question[s] of whether ... the characteristic bears any relationship to the individual[‘]s ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the group’s own volition.”); In re Marriage cases, 43 Cal. 4th at 84243 (concluding that political powerlessness cannot be required for heightened scrutiny to apply because other groups like women and African Americans continue to be accorded heightened protection although they are no longer lacking in political power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group’s political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group’s political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial fact-finding.” 289 Conn. at 171. Despite this inherent difficulty, the

71a
Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of NonAdjudicative Facts, ¶71]7. Most recently months after the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

72a
proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/thefix/post/north-carolina-passes-gay-marriage-banamendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8 ; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of
8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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political power and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does

74a
not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly recognized the gains women had made politically when they recognized gender as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sexbased classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court ultimately declined to view this factor in a rigid fashion instead allowing women to satisfy this factor despite the fact that women were not entirely politically powerless. The Supreme Court concluded that while “[i]t is true, of course, that the position of women in America has

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improved markedly in recent decades” despite such improvement “women 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.” Id. at 685-86. Consequently, the Supreme Court held that “when viewed in the abstract, women do not constitute a small and powerless minority” however “in part because of past discrimination, women are vastly underrepresented in the Nation’s decisionmaking councils.” Id. at 686 n.17.
The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 473 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient

76a
political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the

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Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . 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” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.”

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[Dkt. #82, p. 13-14]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/Fede ralJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5% of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are

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independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/ news/article/New-state-law-requires-LGBT-historyin-textbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses

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sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/ news/nation/story/201202-16/tennessee-bill-homosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn. gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis. cbslocal.com/2012/04/23/controversial-dont-say-gaybill-debated-in-mo-house/; see also proposed House Bill No.2051, available at http://www.house. mo.gov/billtracking/bills121/biltxt/intro/HB2051I.ht m. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy, President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully

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passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socioeconomic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed

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for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.

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In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be ... rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding”[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection... In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendmentthe imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested

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against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985). Although not necessary to trigger heightened scrutiny, this Court finds that gay men and lesbians lack meaningful political power sufficient to satisfy this factor of the suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.9
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasisuspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education …. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail,

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434 U.S. 374, 384, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)). As the Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinski, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 576. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts.

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However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial recognition as a suspect classification. However, the Supreme Court has declined to afford them such status, opting instead to apply rational basis review rather than definitively address whether sexual orientation constitutes a suspect or quasi-suspect class. Accordingly, the Court will apply rational basis review. Even under this, the least intrusive level of review, Section 3 of DOMA fails to withstand constitutional scrutiny.
As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Communs.,
10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.

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Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations – illogical , it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 57 L.

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Ed. 730 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress’s generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification,

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where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S. at 320. The House Committee Report identifies “four governmental interests advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the IntervenorDefendant, has raised several additional objectives which could also have motivated Congress to include a classification based on sexual orientation in Section 3 of DOMA. Specifically, BLAG asserts that “Congress rationally could have been, and in fact was, concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc;
3) To maintain consistency and uniformity with regard to eligibility for federal benefits;
4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and

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5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the articulated legislative objectives, but also any “reasonable conceivable set of facts that could provide a rational basis for the classification,” the Court will consider all of the aforementioned objectives to determine whether the Plaintiffs have sustained their burden to negate “every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing

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children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic

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partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and child-rearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single

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individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits

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upon such marriages would further erode the societal conception of marriage as the appropriate childrearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which

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may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of lateremerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The

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End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit

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same-sex couples to adopt children and afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parentchild contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA hamfistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA

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deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents same-sex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal

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marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).

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heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex

101a
parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon oppositesex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for

102a
their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition … by an individual that may be a debtor … and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow enough in scope and grounded in sufficient factual context … to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude

103a
same sex couples … from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage samesex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope belies any rational relationship to the purported objective of promoting dual-gendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.

104a
3. Defending Traditional Notions of Morality
The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people … feel ought to be illegitimate … And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval … on a union that many people … think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id.
Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification

105a
incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponents Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at http://articles.courant.com/2003-03-25/features/ 0303250984_1_same-sex-marriage-same-sexceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ …] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral

106a
disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.

107a

BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.

Addressing first the assertion that precluding the

extension of federal marital benefits to same-sex

married couples will preserve government resources,

the Court finds that such assertion has no basis in

reality in light of the Congressional Budget Office’s

June 21, 2004 Report. The Report concluded that the

net effect of federal recognition and conferral of

marital benefits upon same-sex marriages would be

to “improve the budget’s bottom line to a small

extent: by less than $1 billion in each of the next 10

years.” CONGRESSIONAL BUDGET OFFICE, THE

POTENTIAL BUDGETARY IMPACT OF

RECOGNIZING SAME-SEX MARRIAGES, at 1

(June

21,

2004),

available

at

https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs

/55xx/doc5559/06-21-samesexmarriage.pdf. Neither

the House Report nor BLAG’s pleadings present any

evidence to the contrary. This conclusion by the

Congressional Budget Office, in the absence of any

108a
conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague

109a
generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance
The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in protecting state sovereignty and democratic selfgovernance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and

110a
democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of same-sex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded samesex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of

111a
government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore, contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire. This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire.12 BLAG’s concern for democratic
12See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.

112a
self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few

113a
states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to samesex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples. Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must

114a
serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most powerful. Such a rationale

115a
would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual

116a
marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring

117a
the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
IV. Conclusion
In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED, and IntervenorDefendant BLAG’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
/s/ Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 31, 2012

118a Appendix B
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, DAMON SAVOY & JOHN WEISS
V.
OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as
the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his office capacity
as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as the United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED
STATES OF AMERICA
V.

119a
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES

NO. 3:10-CV-1750(VLB)

JUDGMENT

This action having come before the Court on plaintiffs’ motion for summary judgment and defendants’ motions to dismiss, before the Honorable Vanessa L. Bryant, United States District Judge; and

The Court having considered the full record of the case including applicable principles of law, and having issued an order granting the plaintiffs’ motion for summary judgment and denying defendants’ motions to dismiss; it is hereby

ORDERED, ADJUDGED and DECREED that judgment be and hereby is entered in favor of plaintiffs.

Dated at Hartford, Connecticut, this 2nd day of August, 2012.

EOD: 8/2/12

ROBIN D. TABORA, Clerk

By

/s/LL

Loraine LaLone

Deputy Clerk

120a Appendix C
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
_____________________________________ JOANNE PEDERSEN, et al.,
Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants.
No. 3:10-cv-01750-VLB _____________________________________
NOTICE OF APPEAL
Defendants hereby appeal to the United States Court of Appeals for the Second Circuit from the Judgment dated August 2, 2012 (Dkt. No. 118) and the underlying Memorandum of Decision dated July 31, 2012 (Dkt. No. 116). Date: August 17, 2012 Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General

121a
DAVID B. FEIN United States Attorney
ARTHUR R. GOLDBERG Assistant Branch Director
/s/ Judson O. Littleton JUDSON O. LITTLETON [phv04345] Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: (202) 305-8714 Fax: (202) 616-8470
Judson.O.Littleton@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2012, a copy of the foregoing Notice of Appeal was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System.
/s/ Judson O. Littleton JUDSON O. LITTLETON

 </s> No. 12-302

In The
Supreme Court of the United States
________________
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Petitioners,
v. JOANNE PEDERSEN, ET AL.,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________ On Petition for a Writ of Certiorari Before Judgment to the United States Court of App_e_a__ls__f_o_r__th__e__S_e_cond 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 MICHAEL H. MCGINLEY

Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

ELENI M. ROUMEL

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
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “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.” 1 U.S.C. § 7.
The questions presented are:
(1) Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?
(2) Petitioners are federal agencies and officers who do not have general responsibility for administering DOMA, but merely oversee a limited number of its applications. When such agencies or officers argue that a federal statute is unconstitutional and prevail in the lower courts, and where the House of Representatives has intervened to defend the statute, do the agencies and officers have prudential standing to seek this Court’s review of the judgment they requested?

ii
PARTIES TO THE PROCEEDING
Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) was the intervenor-defendant in the district court and is an appellant in the Second Circuit.* The statement of the Department of Justice (“Department”) in its Petition on behalf of the Executive Branch defendants that the House intervened merely “to present arguments” in favor of DOMA, see Pet. (II), is inaccurate. Although the Department argued in the district court that the House’s intervention should be limited to those terms, the district court granted the House intervention as a party-defendant to fully litigate DOMA’s constitutionality under equal protection principles.
* 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, like the institution it represents, functions on a majoritarian basis 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
Petitioners the Office of Personnel Management, Timothy F. Geithner, Secretary of the Treasury, Hilda L. Solis, Secretary of Labor, Michael J. Astrue, Commissioner of the Social Security Administration, the United States Postal Service, Patrick R. Donahoe, Postmaster General of the United States of America, Douglas H. Shulman, Commissioner of Internal Revenue, Eric H. Holder, Jr., Attorney General, Thomas J. Curry, Comptroller of the Currency, and the United States of Amerca were defendants in the district court and are appellants in the Second Circuit.
Respondents Joanne Pedersen, Ann Meitzen, Gerald V. Passaro II, Lynda DeForge, Raquel Ardin, Janet Geller, Joanne Marquis, Suzanne Artis, Geraldine Artis, Bradley Kleinerman, James Gehre, Damon Savoy, and John Weiss were plaintiffs in the district court and are appellees in the Second Circuit.

iv
TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ..................................... vi INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 2 1. The Defense of Marriage Act .............................. 2 2. The Justice Department’s About-Face and
the House’s Intervention .................................... 6 3. History of This Case............................................ 8
a. Procedural History ....................................... 8 b. The District Court’s Decision ....................... 9 c. Subsequent Proceedings............................. 11 4. Other Pending Petitions Involving DOMA Section 3 ............................................................ 12 REASONS FOR DENYING THE WRIT ................. 13 I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality. ............. 15 II. This Case Presents Unique Vehicle Problems Not Present in Gill. .......................... 17 A. Because Petitioners Prevailed
Below, Granting Their Petition Would Create Unnecessary Procedural and Substantive Complications............................................. 17 B. This Case Presents a Question of Article-III Standing Regarding Petitioners’ Income-Tax Claims Not Present In Gill............................................ 22

v
III. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Gill Petition Alone............................... 24
CONCLUSION ......................................................... 25

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TABLE OF AUTHORITIES
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ...................... 5
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..................................... 4
Baker v. Nelson, 409 U.S. 810 (1972) ............................................. 9
Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir. 2005) ......................... 23
Camreta v. Greene, 131 S. Ct. 2020 (2011) ....................................... 18
Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) ......................................... 13
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................... 5
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ........................................... 18
Galindo-Del Valle v. Att’y Gen., 213 F.3d 594 (11th Cir. 2000) ........................... 23
Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012) ............... 12
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005)........... 6
INS v. Chadha, 462 U.S. 919 (1983) ..................................... 18, 19
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............ 6

vii
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................... 22
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ............................. 2, 12
McConnell v. FEC, 540 U.S. 93, 228 (2003) ..................................... 22
Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................... 5
Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (9th Cir. 2006) ............................. 23
Renne v. Geary, 501 U.S. 312 (1991) ........................................... 23
S.D. Myers, Inc v. City & Cnty. of San Francisco, 253 F.3d 461 (9th Cir 2001) ............ 23
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) ........................ 6
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ......... 6
Transp. Workers Union of Am., AFL-CIO v. TSA, 492 F.3d 471 (D.C. Cir. 2007) .............. 23
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005)............... 6
Constitutional Provisions
U.S. Const. art. II, § 3 ................................................ 6
Statutes
1 U.S.C. § 1 ............................................................... 23
1 U.S.C. § 7 .............................................................. i, 2

viii
5 U.S.C. § 8341(a)....................................................... 4 5 U.S.C. §§ 8101 ......................................................... 4 8 U.S.C. § 1186a(b)(1) ................................................ 4 28 U.S.C. § 2107(b)................................................... 11 42 U.S.C. § 1382c(d)(2)............................................... 4 42 U.S.C. § 416 ........................................................... 4 I.R.C. § 2(b)(2) ............................................................ 4 I.R.C. § 6013(a)..................................................... 5, 22 I.R.C. § 7703(b)........................................................... 4 Revenue Act of 1921, § 223(b)(2), 42 Stat. 227 ......... 5 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) .......................................................... 4, 5 Regulation & Rules U.S. Dep’t of Labor, Final Rule, The Family And Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995) ....................... 5 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. 17094-95 (1996)............................. 2, 5 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

ix
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .............................................. 3
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............. 3, 5
Letter 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...................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), 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 The 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 ..... 6, 7

INTRODUCTION
The Petition in this case is the latest in a series of extraordinary Petitions for a Writ of Certiorari Before Judgment that the Department has filed seeking review of DOMA’s constitutionality. The Petitions are extraordinary both for the relief they seek, certiorari before judgment, and because they are totally unnecessary. The important issue of the constitutionality of Section 3 of DOMA is squarely presented to this Court in the House’s earlier-filed Petition for Certiorari after judgment in No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. That Petition was filed by the party whose arguments did not prevail in court and comes in the ordinary course following the judgment and opinion of the Court of Appeals for the First Circuit. There is no reason to take the extraordinary step of granting certiorari before judgment here when the exact same issue is better presented in a pending petition for certiorari after judgment.
Granting this extraordinary Petition for certiorari before judgment would accomplish nothing beyond needlessly complicating this Court’s review on the merits. The Department’s arguments prevailed in the district court. Having prevailed below, there is certainly no reason for the Department to get the benefit of an opening and reply brief. Indeed, there is a substantial question whether the Department even has appellate standing to file a Petition here. But at a minimum, to preserve the proper alignment of the parties, if the Court were to grant the Department’s Petition, it would have to undo the effect of its decision to grant certiorari to the

2
Department by realigning the parties and setting a unique briefing schedule that properly provides an opening and reply brief to the House and realigns the Department with the plaintiffs whose arguments it fully embraces. There is no need for any of that. The straightforward course here is also the correct one: This Court should grant the House’s Petition in No. 12-13 to review the decision and judgment of the First Circuit and deny this request for certiorari before judgment.1
STATEMENT OF THE CASE
1. 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.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012). The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17094-95 (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
1 For the same and additional reasons, the Court should also deny the other premature petitions, see infra pp. 12-13, and the Department’s unnecessary Petition in No. 12-15. See the House’s Br. in Opp., No. 12-15 (Aug. 31, 2012).

3
provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the opinion of the Department of Justice on the bill’s constitutionality, and the Department three times 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 The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 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. 87-117 (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 2341 (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, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage,

4
see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), 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. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law 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.2 In enacting DOMA, Congress merely reaffirmed what it has always meant when using the words “marriage” and “spouse” in federal law—and what courts and the Executive Branch have always understood it to
2 See, 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); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 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 social-security 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).

5
mean: A traditional male-female couple.3 It further clarified its understanding that these terms would have that meaning for purposes of federal law regardless of how states might choose to redefine marriage for purposes of their own law.4
3 See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return; cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); 38 U.S.C. § 101(31) (“The term ‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family And 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 “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), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”); see also Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (referring to “the union for life of one man and one woman in the holy estate of matrimony” as “the sure foundation of all that is stable and noble in our civilization”).
4 See House Rep. 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); id. at 30 (“Section 3 merely restates the current understanding of what those terms mean for purposes of federal law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”).

6
2. 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 Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. 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 heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding
5 See 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); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

7
practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
In response, the House sought and received leave to intervene as a party-defendant in the various cases nationwide involving equal-protection challenges to DOMA’s constitutionality. Notwithstanding that the Holder Letter said only that the Department would not defend DOMA Section 3, the Department went further and affirmatively attacked Section 3 in court and accused the Congress that enacted DOMA—many of whose Members still serve—of doing so out of “animus.”6 The Department took this position even though
6 See Br. for OPM, et al., Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn. Sept. 14, 2011). The Department has filed substantive briefs in numerous other DOMA cases making this same argument. See briefs in Windsor v. United States, No. 122335 (2d Cir. Aug. 10, 2012); Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012); Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011); Revelis v. Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012); Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012); Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011); Bishop v. United States, No. 4:04-cv-848 (N.D. Okla. Nov. 18, 2011); Lui v. Holder, No. 2:11cv-1267 (C.D. Cal. Sept. 2, 2011).

8
DOMA was the very same statute (i) that the Department had defended a few short months before, and (ii) that the Department acknowledges is constitutional under the equal protection standard that applies in the great majority of Circuits.
3. History of This Case
a. Procedural History
Plaintiffs-Respondents are a number of same-sex couples who have obtained marriage certificates from states that offer such certificates to same-sex couples, and surviving members of such couples. They seek to enjoin DOMA and to obtain federal benefits available to opposite-sex married couples.
Plaintiffs-Respondents filed suit before the Department ceased defending DOMA, and the district court allowed the Department a period of more than four months to move to dismiss. Pretrial Deadlines Order & Sched. Order, Pedersen, No. 10cv-1750 (D.Conn. Nov. 9, 2010 & Jan. 6, 2011). Instead of filing such a motion, however, the Department ultimately notified the court that it would not defend DOMA’s constitutionality against equal-protection attack, Notice to Ct., id. (D.Conn. Feb. 25, 2011), and the House sought and was granted leave to intervene. See Order, id. (D.Conn. May 27, 2011).
The district court entered an unusual scheduling order under which Plaintiffs-Respondents would move for summary judgment before the House could move to dismiss the complaint. Sched. Order at 2, id. (D. Conn. May 27, 2011).

9
b. The District Court’s Decision
The dispositive motions were fully briefed and pending before the district court for nine and one half months before the district court’s decision. Ultimately, without hearing oral argument, the district court granted Plaintiffs-Respondents’ motion for summary judgment and denied the House’s motion to dismiss. The court first addressed a threshold question of standing regarding PlaintiffsRespondents’ claims to file joint income tax returns, holding that the tax code is “gender neutral” despite its specification that joint tax returns may be filed by “a husband and wife,” and thus that PlaintiffsRespondents had standing to seek joint tax returns by challenging DOMA but not the tax-code provision itself. App. 18a-20a. The court also concluded that Plaintiffs-Respondents’ ineligibility for joint tax returns is defined solely by DOMA and not by the tax code, because the IRS sent letters to some of the Plaintiff-Respondents that, in the court’s view, stated as much. App. 20a-21a.
The district court then found this Court’s decision upholding traditional marriage laws in Baker v. Nelson, 409 U.S. 810 (1972), to be inapplicable, in part on the ground that in that case this Court had decided only “a state constitutional question while this case presents a United States constitutional question.” App. 23a.
Turning to the question of the proper level of constitutional scrutiny for classifications based on sexual orientation—an issue that the Second Circuit has not yet addressed—the district court expressed the view that heightened scrutiny would apply, App. 85a, but found that it “need not apply a form of

10
heightened scrutiny” because, in the court’s view, DOMA fails rational-basis review. App. 74a-75a.
In purporting to apply rational-basis review, however, the district court wholly inverted the burden of proof. It held that Congress could not rationally proceed with caution in the face of the unknown consequences of changing a foundational social institution, because that would be “permitting discrimination [to continue] until equal treatment is proven * * * to be warranted,” which the court found unacceptable. App. 100a. The court also declared it irrational for Congress to desire a policy of nationwide uniformity in marital benefits eligibility for same-sex couples, rather than a uniform policy of deference to state law. App. 101a-102a. The district court concluded that DOMA is not rationally related to conserving government funds because even though the plaintiffs sought additional benefits, the court believed, recognizing same-sex marriages would result in a net transfer of wealth away from same-sex couples and to the government. App. 93a94a. It also found that saving money is not a legitimate state interest unless there is some further justification for how the money is saved. App. 95a.
The court also stated that DOMA cannot rationally be thought to foster responsible childrearing because it does not permit every couple that is allowed to raise children to marry each other for purposes of federal law, does not require married couples to have children, and does not prohibit same-sex couples from raising children. App. 84a-86a, 88a-90a. The district court suggested that Congress may not conclude that it is best for children to be raised by married couples unless it is willing to accept

11
whatever definition of “married” the states might choose to adopt. App 86a.
The court also expressed its belief that, “by relieving homosexual couples of legal obligations imposed on heterosexual couples,” DOMA “disincentivizes heterosexual marriage.” App. 86a. The court found DOMA not rationally related to childrearing because the court believed that some marital benefits and duties are not related to children. App. 89a.
c. Subsequent Proceedings
Although the district court adopted the result advocated by Petitioners, they nevertheless filed a Notice of Appeal to the Second Circuit on August 17, 2012—only 15 days after the district court entered judgment, and 45 days before the deadline for filing a notice of appeal. See 28 U.S.C. § 2107(b). Petitioners filed the instant Petition only four days later, August 21, 2012, and on that same day moved in the Second Circuit for a highly expedited schedule. See Mot. for Expedited Appeal, Pedersen, No. 12-3273 (2d Cir. Aug. 21, 2012). That motion was denied. Order, id. (2d Cir. Aug. 28, 2012). Petitioners never filed their own appeal for the rather obvious reason that they prevailed in the district court.
The House filed its own Notice of Appeal to the Second Circuit on September 28, 2012. The two appeals apparently are being treated as consolidated in the Second Circuit. See Nos. 12-3273 & 12-3872 (2d Cir.). The House has moved to dismiss the Department’s appeal on grounds that the Department lacks appellate standing and that its

12
appeal is superfluous, Mot. to Dismiss, id. (2d Cir. Oct. 4, 2012), but no merits briefing on DOMA’s constitutionality has been filed.
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality is also presented by seven other petitions for certiorari pending before this Court. Three petitions arise out of the First Circuit’s decision and judgment in Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012). The others are petitions for certiorari before judgment following appeals of district court judgments striking down DOMA on equal protection grounds—one petition by the plaintiffs in this case, one by the Department in Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012), and petitions by both the plaintiff and the Department in Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012).
The House filed a Petition for Certiorari in the First Circuit case on June 29, 2012. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. No party opposes the House’s Gill Petition. A few days later, the Department filed its own Petition in that case, No. 12-15 (July 3, 2012), despite having its bottomline position on DOMA adopted in that case. On July 20, Massachusetts filed a Conditional CrossPetition for Certiorari in the First Circuit case, No. 12-97; both Massachusetts and the individual Gill plaintiffs support this Court’s review in Gill. Resp. of the Commonwealth of Mass. in Supp. of Cert., Nos. 12-13 & 12-15 (July 20, 2012); Br. in Resp. of Nancy Gill et al., Nos. 12-13 & 12-15 (Aug. 2, 2012).

13

Similarly, the Department filed a Petition for a

Writ of Certiorari Before Judgment in Golinski, No.

12-16 (July 3, 2012), despite prevailing below—an

action subsequently duplicated by the Plaintiff-

Petitioners in Windsor, see No. 12-63, and

Petitioners here, see No. 12-231. The Department

then filed its own Petition in Windsor as well. See

Nos. 12-307.7

The Department does not

unequivocally support plenary review in either this

case or Windsor, but merely requests that the Court

hold those Petitions for review in the event it denies

the writ in the other DOMA cases.

REASONS FOR DENYING THE WRIT

A grant of certiorari before judgment in the Court of Appeals “is an extremely rare occurrence.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers). This Court’s Rule 11 provides that such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

This case does not remotely satisfy that standard. Although the issue of DOMA’s constitutionality is indeed a matter of great public importance, particularly given the confrontation between the House and executive branch engendered by the

7 On October 18, the day before this Brief was filed, a divided panel of the Second Circuit affirmed the judgment of the district court in Windsor. Whether the Windsor petitions are now treated as coming before or after judgment, it remains the case that the parties seeking review are the ones who prevailed in the lower courts.

14
Department’s actions in this litigation, that issue has already been brought before this Court by “normal appellate practice”—in the form of the House’s petition after decision and judgment in Gill, a case in which the House, Department, Massachusetts, and the individual plaintiffs all agree that certiorari is appropriate. There is thus nothing “to justify deviation from normal appellate practice” in this case.
Instead, granting the writ here would result only in unnecessary duplication and confusion. Not only is there no justification for taking the extraordinary step of granting certiorari before judgment when the exact same issue is squarely presented in an earlierfiled petition for certiorari after judgment, but this case features vehicle problems not present in Gill. As explained more fully in the House’s opposition in No. 12-15, it is not clear that a prevailing party even has appellate standing to seek this Court’s review. Although those principles may apply differently in the certiorari before judgment context, there is certainly no reason to grant that extraordinary relief and confront those issues when the same underlying constitutional issue is squarely presented in a case in which the First Circuit has already issued its opinion and entered judgment.
The Department’s effort to obtain certiorari before judgment in this case is truly extraordinary. If the Department were really eager to seek certiorari before judgment, it could have done so years ago. It makes little sense for the Department to make that extraordinary request only after a case—Gill—is properly before this Court in the ordinary course of appellate proceedings. This case would add nothing

15
except procedural complications to this Court’s consideration of DOMA’s constitutionality in Gill. The proper course here is also the straightforward one: There is no reason for the Department or this Court to search through the dockets of the courts of appeals for cases implicating DOMA’s constitutionality when the First Circuit has ruled. The First Circuit rejected the House’s arguments and the House alone seeks to have the First Circuit’s judgment overturned.
Under these circumstances, the House’s Gill Petition is the superior vehicle for review of DOMA’s constitutionality by this Court. The Court can avoid all of the side issues presented by this case and focus on the important question of DOMA’s constitutionality by granting the House’s Petition in No. 12-13, and denying the Petition in this case.
I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality.
As Petitioners acknowledge, Pet. 13, the question presented in this case regarding DOMA is identical to the House’s Question 1 in Gill. Compare Pet. (I) with Pet. No. 12-13 i.8 In its Gill opinion, the First Circuit passed on exactly the same question as the district court here: Whether DOMA is compatible with the Fifth Amendment’s implicit guarantee of equal protection. Likewise, the sub-issues addressed by the two courts were the same: Both cases focused on the proper level of constitutional scrutiny to apply, and the government interests supporting DOMA considered by the two courts were virtually
8 The Department’s Petition in Gill also presents that same question. See Pet. No. 12-15 (I).

16
identical. Thus, there is no aspect of the issues that would be presented in this case as to DOMA’s constitutionality that the Court could not address as easily (or more easily) in Gill instead.
Petitioners baldly state that “the district court’s consideration of the applicable level of scrutiny in this case may materially assist this Court’s consideration of that issue.” Pet. 13 (internal citation omitted). But this Court will have the benefit of the district court’s analysis—as well as that of multiple other district courts, some of which have upheld DOMA and some of which have struck it down—whether or not it grants an extraordinary petition for certiorari before judgment. Nothing prevents the Department from citing the district court’s analysis here in its merits brief in Gill.
Recognizing that this case adds nothing to Gill, Petitioners suggest that the Court hold it pending the disposition of the Gill petitions, and grant certiorari before judgment here if it denies the writ in that case. Pet. 13. But as is explained infra, this case is inferior to Gill in multiple ways as a vehicle for reviewing DOMA’s constitutionality. If the Court somehow deems that issue not to warrant certiorari after judgment in Gill, then a fortiori it will not warrant certiorari before judgment in cases presenting additional vehicle problems, such as this case and the other pending DOMA cases. Moreover, if this Court grants certiorari in Gill, it still would make sense to deny the various premature petitions for certiorari before judgment and allow the courts of

17

appeals to decide how best to handle the cases during the pendency of Gill before this Court.9

II. This Case Presents Unique Vehicle Problems Not Present in Gill.

Granting certiorari in this case, however, would complicate consideration of the important constitutional issue raised in Gill both procedurally and substantively, as this case raises at least two vehicle problems not present in Gill.

A. Because Petitioners Prevailed Below,

Granting Their Petition Would Create

Unnecessary

Procedural

and

Substantive Complications.

Because the Department prevailed in the district court in this case, it would make no sense to give the Department the benefit of an opening and reply brief in this Court. Thus, if the Court were to grant certiorari before judgment here, it would have to engage in a series of procedural machinations to align the parties properly. There is no reason to go

9 Nor is there any sensible reason to hold this Petition, or any of the other DOMA petitions for certiorari before judgment, for a possible grant and summary action following a decision on the merits in Gill. When this Court considers the constitutionality of a statute, it rarely if ever has felt the need concurrently to grant certiorari before judgment in every case implicating that statute’s constitutionality—obviously, the courts of appeals are bound by this Court’s decision either way. Changing course and granting certiorari before judgment here thus might encourage similar floods of premature certiorari petitions in future litigation, for no good reason.

18
through those steps when the parties are already properly aligned in the House’s Petition in Gill.
The complications flowing from the Department’s success in the district court go well beyond scheduling. As explained more fully in the House opposition in No. 12-15, it is not clear that the Department even has appellate standing to petition. One of the basic rules of federal procedure is that “a party who receives all that he has sought generally is not aggrieved by the judgment affording [the] relief and cannot appeal from it.” INS v. Chadha, 462 U.S. 919, 930 (1983) (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (brackets omitted)).
Two Terms ago this Court made clear that the same principle applies to its certiorari jurisdiction. Camreta v. Greene, 131 S. Ct. 2020, 2030-33 (2011). As a result, “[a]s a matter of practice and prudence, [this Court has] generally declined to consider cases at the request of a prevailing party.” Id. at 2030.
Indeed, in a footnote in the instant Petition, the Department acknowledges that granting certiorari here would require the Court to expand the existing executive-branch appellate-standing rule in cases like this one—from a rule allowing “an agency of the United States” to appeal a judgment striking down “the Act of Congress it administers” even where it agrees with that outcome, INS v. Chadha, 462 U.S. 919, 931 (1983), to one allowing any executivebranch defendant to obtain review of any judgment striking down a statute that the executive branch maintains is unconstitutional. See Pet. 14 n.4.

19
Petitioners maintain that this “is a distinction without a difference,” id., but that of course is the precise question that the Court would be required to decide if it granted any of the Department’s pending petitions. And there are significant arguments why the difference may be material. This rule of Chadha is already in the nature of an exception to the general rule that a party cannot appeal from a judgment it requested. The Chadha Court indicated that an agency’s special relationship with “the Act of Congress it administers” is a reason for permitting such an exception when the agency believes the statute to be invalid. 462 U.S. at 931. That is very different from giving the Department an open-ended mandate to seek this Court’s affirmance of the invalidation of any statute the Department chooses, in cases where a Congressional party has intervened to defend the statute. Certainly, there is no compelling reason to make it costless for the Department to abandon its traditional obligation to defend the constitutionality of duly-enacted statutes. Moreover, Chadha involved the executive branch resisting what it regarded as an encroachment on its own constitutional power by the legislative veto at issue there. For both these reasons, the agency in Chadha had a considerably more concrete and particularized interest at stake than the Petitioners here have in DOMA’s invalidity. Granting one of the Department’s petitions for certiorari before judgment would needlessly force this Court to decide whether to extend the rule of Chadha to this situation.
Additionally, the events of the DOMA litigation suggest that this Court should not be over-eager to

20
reaffirm Chadha’s holding regarding executivebranch standing in cases where a Congressional body has taken on the Department’s normal role of defending a statute’s validity. In Chadha, Congress’ involvement was essentially limited to the proceedings before this Court, and the Executive Branch and Legislative Branch agreed that Chadha’s case was the proper one for this Court’s review. It was relatively uncomplicated, therefore, to permit both of them to seek that review. The procedural circumstances here are very different and cast the question in a significantly different light.
When the Executive Branch opines that a major federal statute is unconstitutional and drops its legal defense of that statute in the lower courts, any Congressional body that intervenes will instantly become the sole operative defendant in what is likely to be (or become) sprawling, nationwide litigation— and one that will be prolonged even further by the delays necessarily caused by the intervention process and the re-setting of dispositive briefing deadlines. That is exactly what happened here: The House has been defending DOMA for well over a year, and has intervened in 15 lawsuits challenging DOMA’s validity. Many of these cases involved discovery, including the depositions of numerous expert witnesses; nearly all of them involved briefing multiple dispositive motions and/or appeals. And in all of the cases, the House has been required to defend the statute’s validity against the attacks not only of private plaintiffs, but of the Department as well.
But, when it came time to appeal in these cases, the House found itself in an extended tug-of-war

21
with the Department—which opposes the relief the House seeks—over which cases should receive further review, and when, and how.10 In such circumstances, there is at least a serious question whether it is more appropriate for the Congressional body, as the real party in interest aggrieved by the lower-court judgment, to have the normal right accorded any other multi-case defendant of determining its own appellate strategy, rather than being forced to deal with whatever appeals the Department, an opposing and prevailing party, chooses to file.
The Court need not decide this matter in the DOMA litigation. Since the House’s standing to seek this Court’s review of a judgment striking down DOMA is clear, granting the House’s Gill petition would avoid the question entirely. But granting the Department’s petition not only would lend fresh credence to, but would affirmatively expand, the Chadha rule in a manner that is at best premature and inappropriate without plenary consideration of the issue. The far simpler route is to avoid unnecessarily considering whether to extend this aspect of Chadha, by granting the House’s unopposed Gill petition and denying the Department’s petitions.
10 Indeed, the instant Petition and the plaintiffs’ Petition in this very case were made possible only by the Department’s filing of a notice of appeal to the Second Circuit well before the deadline for doing so—while the House waited to file its own appeal until near the end of the applicable period, and well after the parties seeking DOMA’s invalidation had already sought this Court’s review. See supra 11.

22

In short, while appellate standing principles may apply differently in the certiorari before judgment context, there is no reason for this Court to get sidetracked by questions concerning appellate standing, the scope of Chadha, or how those principles apply in the certiorari before judgment context. To the contrary, the Court can avoid all of these side issues and focus on the important question of DOMA’s constitutionality simply by granting the House’s Petition in No. 12-13.

B. This Case Presents a Question of

Article-III

Standing

Regarding

Petitioners’ Income-Tax Claims Not

Present In Gill.

Many of the Plaintiffs-Respondents seek to file joint federal income tax returns, and they claim that only DOMA prevents them from doing so. But it is far from clear that this is true. The applicable tax statute, I.R.C. § 6013(a), also precludes same-sex couples from filing jointly because it expressly provides that “[a] husband and wife may make a single return jointly of income taxes.” Because Plaintiffs-Respondents have not challenged the constitutionality of § 6013(a), there is a serious question whether their claimed income-tax injuries would even be redressed if DOMA were struck down as they request, or whether § 6013(a) would independently bar the relief they seek—and thus whether they have standing to pursue those claims. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-562 (1992).11

11 See McConnell v. FEC, 540 U.S. 93, 228-229 (2003) (decision striking down challenged portions of BCRA would not

23
The district court relied on the provisions of the Dictionary Act, 1 U.S.C. § 1, and the tax code providing that masculine terms include the feminine to conclude that the terms “husband and wife” should be read as “gender neutral.” App. 20a. But this conclusion is far from obvious. Section 6013(a)’s use of the terms husband and wife in contradistinction from each other strongly suggests a reference to opposite sex married couples, which would negate any inference that the terms could be read to be gender-neutral.
There is a further complication with the District Court’s invocation of the Dictionary Act. The Dictionary Act provides only that the masculine includes the feminine, not vice versa. Thus, if read literally, the Dictionary Act would suggest, at most, that two women with a marriage certificate could file a joint tax return but two men could not. That nonsensical result strongly suggests that while the Dictionary Act was meant to address antiquated uses of male-specific references, it was not intended to override gender-specific references to terms like mother and wife, let alone override a specific
redress plaintiffs’ injuries because parallel provisions of FECA were not before the Court); Renne v. Geary, 501 U.S. 312, 319 (1991) (similar); Galindo-Del Valle v. Att’y Gen., 213 F.3d 594, 598 (11th Cir. 2000), superseded by statute on other grounds as stated in Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1359 (11th Cir. 2005); cf. Transp. Workers Union of Am., AFL-CIO v. TSA, 492 F.3d 471, 475-76 (D.C. Cir. 2007); Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941, 955 (9th Cir. 2006); S.D. Myers, Inc v. City & Cnty. of San Francisco, 253 F.3d 461, 474-76 (9th Cir 2001).

24

reference to opposite-sex couples, such as § 6013(a)’s reference to a husband and wife.

The far better reading of § 6013(a) is that its

reference to “husband” and “wife” independently

limits joint filing status to opposite-sex married

couples. At a minimum, it was imprudent for

Petitioners to challenge DOMA without also

challenging § 6013(a), as that tactical judgment has

called their standing into question. And no matter

how this Court would ultimately resolve these case-

specific and largely self-inflicted issues, there is no

reason for this Court to invite those extra

complications

in

considering

DOMA’s

constitutionality by granting certiorari before

judgment here, when Gill comes to it after judgment

and presents no such wrinkles.

In short, there is no good reason for this Court to take the extraordinary step of granting certiorari before judgment when the exact same issue is before the Court—and better presented—in the House’s Petition seeking review of the decision and judgment of the First Circuit in Gill.

III. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Gill Petition Alone.

Ever since the Department abandoned its traditional responsibility of defending the constitutionality of DOMA, it has operated as a de facto amicus supporting the arguments of plaintiffs attacking DOMA’s constitutionality. As such, the Department is not entitled to any special consideration of its views as to the appropriate

25
vehicle for this Court’s review. Thus, where the only party defending DOMA (the House) and the plaintiffs who have attacked DOMA all agree that Gill is an appropriate vehicle for this Court’s review, the Department’s suggestion that this Court should accept its extraordinary Petition for Certiorari Before Judgment even if it rejects the House’s Gill Petition should be viewed with deep skepticism.
Moreover, given the Petitioners’ role as de facto amici supporting the plaintiffs, granting this Petition would lead to procedural complications and require the Court to realign the parties for purposes of briefing and argument. There is no need to scramble the parties by granting this Petition only to undo the effect by granting later procedural motions.
* * *
The House agrees with the Department and with Plaintiffs-Respondents that this Court should review DOMA’s constitutionality. But there clearly is no need to circumvent normal appellate practice to do so—especially when this case presents unique vehicle problems which could only distract this Court from the central issues concerning DOMA. DOMA’s constitutionality can be fully resolved by granting the House’s Petition in Gill, and this Court should take that path. In all events, it should decline to take the extraordinary step of granting certiorari before judgment in this case.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Certiorari Before Judgment should be denied. The House’s Petition for Certiorari in No. 12-13 should be granted.

26
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY 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 ELENI M. ROUMEL
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 United States House of Representatives
October 19, 2012

 </s> No. 12-231 & No. 12-302

IN THE
Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v.

OFFICE OF PERSONNEL MANAGEMENT, ET AL., AND

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED

STATES HOUSE OF REPRESENTATIVES,

_________

Respondents.

On Petition for a Writ of Certiorari before Judgment to
the United States Court of Appeals for the Second Circuit
_____________

REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT _____________

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

Counsel for Petitioners Joanne Pedersen, et. al.

i TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................ii

INTRODUCTION ........................................................ 1

ARGUMENT ............................................................... 2

I. The Internal Revenue Code Poses No Obstacle To Granting Review In This Case. .......................................... 2

II. It Is Not A “Problem” That Petitioners Previously Prevailed In The District Court. ............................ 7

CONCLUSION .......................................................... 10

ii TABLE OF AUTHORITIES Camreta v. Greene, 131 S. Ct. 2020 (2011)........ 7, 8 Davis v. United States, 495 U.S. 472 (1990).......... 6 Estate of Tilyou v. Commissioner, 470 F.2d 693 (2d Cir. 1972) ............................................. 5 INS v. Chadha, 462 U.S. 919 (1983) ................ 9, 10 Jana-Rock Construction, Inc. v. New York State Department of Economic Development, 438 F.3d 195 (2d Cir. 2006).................................................................. 5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................. 5 Mistretta v. United States, 488 U.S. 361 (1989)................................................................. 8 SEC v. Chenery Corp., 332 U.S. 194 (1947)........... 4 Townes v. Jarvis, 577 F.3d 543 (4th Cir. 2009).................................................................. 4 United States v. Nixon, 418 U.S. 683 (1974) ......... 8 STATUTES 1 U.S.C. § 1 .............................................................. 5 28 U.S.C. § 1254(1).............................................. 7, 9 OTHER AUTHORITIES Eugene Gressman et al., Supreme Court Practice (9th ed. 2007).............................. 7, 8, 9 IRS Information Letter 2001-0294 (Dec. 31, 2001).................................................................. 6

iii IRS Pub. 17 (1995) .................................................. 6 Rul. 58-66, 1958-1 C.B. 60 ...................................... 6

INTRODUCTION
If the Court decides to hear one or more cases this Term involving the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), this case presents an ideal vehicle for doing so. Reflecting the vast sweep of DOMA through the U.S. Code, the Petitioners in this case represent a large number of both married and widowed persons who have been harmed by DOMA in a myriad of ways, spanning from disadvantageous treatment in private pension plans subject to ERISA, to discrimination in the Social Security program, to the denial of federal employee benefits, to less-favorable treatment under the federal Tax Code. The Petitioners have all been lawfully married in and by Connecticut, Vermont, or New Hampshire—all states that democratically chose to extend marital rights and responsibilities to same-sex couples. The district court issued a thorough and exhaustive analysis of the challenged law and struck it down. The factual record— including extensive expert testimony—is virtually identical to that in Windsor v. United States, No. 1263, and indistinguishable from that in Gill v. Office of Personnel Management, No. 12-13. And there are no meaningful procedural or statutory obstacles in this case that would prevent the Court from squarely reaching the constitutional issue. If the Court declines to grant a writ of certiorari in Gill, which similarly exposes the vast all-encompassing effects of DOMA on married (and widowed) same-sex couples, this case stands ready as the perfect alternate vehicle to resolve this critical issue.

2
BLAG cannot seriously dispute the suitability of this case as a vehicle for adjudicating the many challenges to DOMA currently before the Court. While BLAG suggests that four of the thirteen Petitioners lack standing because a different statutory provision of the Internal Revenue Code would have the same effect on them as DOMA, this argument is a meritless sideshow. The objection raised by BLAG does not affect the majority of the Petitioners or claims in this case and would not prevent the Court from addressing the central constitutional challenge to DOMA. And the procedural posture of this case—a grant of certiorari before judgment sought by the prevailing party in the district court, while an appeal in the Court of Appeals is pending—is wholly appropriate and would not require any unusual procedural maneuvers. This case demonstrates the many ways in which DOMA impacts and disadvantages same-sex couples and disrespects the marital status determinations and marital eligibility policies chosen democratically by the states, and represents an ideal vehicle for the Court to consider these issues.
ARGUMENT
I. The Internal Revenue Code Poses No Obstacle To Granting Review In This Case.
BLAG opposes certiorari on the ground that some of the Petitioners—i.e., the two couples who sought to file joint tax returns (“Tax Petitioners”)—were harmed not “solely” by DOMA, but also by the Internal Revenue Code Section 6013(a) (“Section 6013”). BLAG argues that Section 6013, which

3
states that a “husband” and “wife” may file joint tax returns, would preclude the Tax Petitioners from filing jointly even if DOMA were struck down as unconstitutional, thereby depriving them of standing. As an objection to a grant of certiorari in this case, BLAG’s concerns are baseless.
At the outset, BLAG’s novel reading of Section 6013 has no bearing on the suitability of this case as a vehicle for adjudicating the constitutionality of DOMA. While BLAG asserts that “[m]any of the Petitioners seek to file joint federal income tax returns,” Opp. 15 (emphasis added), only four of the thirteen Petitioners—Suzanne and Geraldine Artis, Bradley Kleinerman, and James “Flint” Gehre—have claims based on joint filing. The remaining Petitioners have claims having nothing to do with taxes or joint filing; the Court would have a direct path for adjudicating Petitioners’ constitutional challenge to DOMA in the context of those other claims (such as those predicated upon ERISA, Social Security, or Federal Employee Health Benefits) irrespective of BLAG’s statutory argument. BLAG’s argument under Section 6013 would thus do nothing to obstruct or complicate resolution of the constitutional challenge in this case.
BLAG’s argument under Section 6013 also fails as a factual matter. The Tax Petitioners in this case were actually harmed by DOMA, not by Section 6013. As the district court recognized, “the IRS has repeatedly stated that DOMA—and not Code Section 6013—is the reason that same sex couples may not file joint tax returns.” Pet. App. 22a. In fact, it did

4
so in this case, finding that Tax Petitioner Suzanne Artis could not file a joint return because of “DOMA,” not because Section of 6013.1
At best, BLAG is arguing that there is a reading of the Internal Revenue Code that the IRS could adopt, but has not actually yet adopted, that would deprive the Tax Petitioners of the ability to file joint tax returns even absent DOMA. But the possibility of a future adverse ruling by the IRS does not deprive the Tax Petitioners of standing to challenge the actual adverse rulings based on DOMA that the IRS made in their cases. An agency—much less an intervenor such as BLAG—cannot simply cook up alternative, post hoc bases for the agency’s action in litigation filings, and then claim that a litigant lacks standing because the litigant failed to challenge those alternative, not-yet-existing bases at the time the litigant challenged the agency action in court.2
Standing does not require an absolute guarantee that Petitioners will prevail on remand; it requires only that there be some “realistic possibility” that an agency would, absent a challenged statute, grant the relief the Petitioners seek. Townes v. Jarvis, 577 F.3d 543, 548 (4th Cir. 2009) (quoting Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C. Cir.
1 This finding was set forth in an IRS Determination Letter to Suzanne Artis dated February 18, 2011, which is contained in the record as an attachment to Petitioners’ summary judgment motion. In the case of Tax Petitioners Kleinerman and Gehre, the IRS never even provided a determination letter at all.
2 See SEC v. Chenery Corp., 332 U.S. 194 (1947).

5
1991)). What matters is that it is not “merely speculative” that Tax Petitioners’ injuries will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). There is no doubt a “substantial likelihood” that the Tax Petitioners will be able to file joint tax returns if DOMA is held to be unconstitutional. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006).
Indeed, BLAG’s novel interpretation of Section 6013 is unlikely ever to be adopted by the IRS. As the district court properly held, the far better reading of Section 6013 is that it would not bar same-sex couples from filing joint returns absent DOMA. Pet. App. 22a. The Dictionary Act, 1. U.S.C. § 1, and the Tax Code dictate that gendered terms such as “husband” and “wife” be read as genderneutral, so that same-sex and opposite-sex couples may file jointly. Pet App. 22a.3
Moreover, BLAG has not mustered any evidence to suggest that the IRS has interpreted or ever would interpret Section 6013 to preclude the Tax Petitioners from filing joint returns absent DOMA. In fact, the IRS has never adopted the narrow,
3 While BLAG’s preferred reading of Section 6013 is that “husband” and “wife,” when viewed in context, suggest reference to opposite sex spouses, Opp. 15-16, it cites no authority to that effect. In any event, “spouse” is used synonymously with “husband” and “wife” throughout the Tax Code. Cf. Estate of Tilyou v. Comm’r, 470 F.2d 693, 694 n.2 (2d Cir. 1972) (interpreting “his surviving spouse” to include husband or wife).

6
gendered construction of Section 6013 that BLAG urges here. Before DOMA, the IRS took the position that the statute allowed couples to file jointly so long as couples were married under state law. See IRS Pub. 17, at 22 (1995) (explaining that filing status depends on marital status); Rev. Rul. 58-66, 1958-1 C.B. 60 (explaining that “martial status” is determined “under state law”). After DOMA, the IRS took the position that DOMA changed the meaning of 6013 to exclude same-sex couples. See IRS Information Letter 2001-0294 (Dec. 31, 2001) (stating that “Vermont civil union cannot under DOMA, be a marriage for purposes of the Internal Revenue Code”) (emphasis added). The IRS’s consistent decisions pointing to DOMA, rather than to Section 6013, as precluding married same-sex couples from filing joint returns, are both “contemporaneous” and “have long been in use,” and as such are due “considerable weight.” Davis v. United States, 495 U.S. 472, 484 (1990). The IRS’s documented position also suggests that, if DOMA were struck down, the IRS, as the agency responsible for interpreting and implementing the Tax Code, would not interpret Section 6013 to preclude samesex married couples from filing jointly, but would instead interpret Section 6013 to allow joint filing for all married couples.
The flaws in BLAG’s argument are compounded by the fact that its preferred reading of Section 6013 would be untenable on remand in the event DOMA were struck down. In such a scenario, Section 6013 would suffer from the same constitutional infirmity as DOMA, and as a matter of constitutional

7
avoidance would almost certainly be construed to permit same-sex couples to file joint tax returns. And in the unlikely event the IRS were to rely on Section 6013 to deny joint filing in the future, the Tax Petitioners—as well as any similarly situated couples—would likely succeed in a constitutional challenge to such action. At a bare minimum, the Tax Petitioners have standing to challenge DOMA so they can so make this argument on remand. BLAG’s tax theory is not a reason to decline to hear this case.
II. It Is Not A “Problem” That Petitioners Previously Prevailed In The District Court.
Petitioners also have standing to seek certiorari in this case. It is black-letter law that “any party” to a case pending “in the court of appeals” may petition for a writ of certiorari. 28 U.S.C. § 1254(1) (emphasis added). This language covers not only those who have lost in the court below but also “petitions brought by litigants who prevailed.” Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (citing Eugene Gressman et al., Supreme Court Practice 87 (9th ed. 2007)). BLAG and DOJ have filed notices of appeal in this case, and both of those appeals are pending in the Second Circuit. See No. 12-3872 (BLAG appeal); No. 12-3273 (DOJ appeal). As a statutory matter, therefore, Petitioners have standing to seek certiorari because this case is undoubtedly “in the court[] of appeals,” as required by 28 U.S.C. § 1254(1). See Eugene Gressman et al., Supreme Court Practice 83-84 (9th ed. 2007).
Article III’s standing requirements are satisfied in this case for the same reason. Given BLAG’s and

8
DOJ’s pending appeals, there is no doubt that a case or controversy is pending before the Second Circuit. That petitioners seek to “transfer [those] appeal[s] from one appellate court to another,” does not alter the fact that there remains a live case or controversy in this action for purposes of Article III. Gressman, supra, at 426.
The fact that petitioners prevailed in the district court does not alter the analysis. This Court has granted such petitions for certiorari before judgment filed by similarly situated parties. See, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting petitions for certiorari of both Mistretta and the United States where the district court had ruled in favor of the United States in a decision concerning the constitutionality of the federal sentencing guidelines); United States v. Nixon, 418 U.S. 683, 686-87 & n.2 (1974) (granting petition for certiorari before judgment of United States where district court had ruled in favor of the United States in a decision concerning the issuance of a subpoena).
In urging the contrary conclusion, BLAG points to its brief in opposition to certiorari filed in U.S. Dep’t Health & Human Servs. v. Massachusetts, No. 12-15. See Opp. 17. But none of the cases cited in that brief involves the standing of parties seeking certiorari before judgment. See, e.g., Camreta, 131 S. Ct. at 2026 (discussing petition for certiorari filed after petitioners had prevailed in the court of appeals

9
on issues of qualified immunity); INS v. Chadha, 462 U.S. 919, 930 (1983) (similar).4
To be sure, a party who prevails in the court of appeals often may have “receive[d] all that he has sought,” Chadha, 462 U.S. at 930, and is not sufficiently “aggrieved” to petition for certiorari. But that is not what has occurred here. Given the appeals currently pending against them, Petitioners have not received any such final resolution, and have not received any benefit from prevailing in the district court. They still suffer adverse consequences from DOMA—which continues to deprive them myriad dignitary and financial benefits. In short, Petitioners’ injuries—like those of other prevailing parties who have sought certiorari before judgment, see supra—are ongoing.
Further, even if BLAG were correct that Petitioners’ victory in the district court deprived them of appellate standing (which it does not), that should be of no moment in considering whether to accept this case for review. That is because the federal defendants have also filed a petition for certiorari before judgment in this case. DOJ Pet.,
4 Even BLAG concedes that appellate standing principles “may apply differently to a petition for a writ of certiorari before judgment.” Opp. 17. In fact, although the language of 28 U.S.C. § 1254(1) permits “any party” to file seek certiorari either “before or after rendition of judgment,” by a court of appeals, § 1254(1) (emphasis added), it appears that the Court has historically granted such petitions by parties prevailing in the district court only where, as here, an appeal was pending in the court of appeals. See Gressman, supra, at 426.

10
No. 12-302 (filed Sept. 2012). As that petition points out, “the district court’s decision was entered against the government such that it is not a “prevailing party.” Id. at 14 n.4. As this Court’s decision in Chadha, 462 U.S. 919, makes clear, “[w]hen an agency of the United States is a party to a case in which the Act of Congress is held unconstitutional,” it may seek this Court’s review of that decision, even if, as here, the Executive “agree(s) with the holding that the statute in question is unconstitutional.” Id. at 930-31. Because the federal defendants have standing to seek review in his case, any question about Petitioners’ standing to do so is largely academic. Put simply, this Court need not even assess whether Petitioners have appellate standing here in order to grant review in this case.
CONCLUSION
For the foregoing reasons, and those set forth in Petitioners’ opening petition, the petition for a writ of certiorari before judgment should be granted.

11 Respectfully submitted,

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

October 31, 2012

 </s> No. 12-302
In the Supreme Court of the United States
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. JOANNE PEDERSEN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF CONTENTS Page
A. The Internal Revenue Code poses no obstacle to review of DOMA Section 3 in this case ..............................2
B. Federal petitioners, as defendants against which judgment was entered, have standing to seek certiorari .................................................................................2
C. Certiorari before judgment is warranted here if necessary to ensure timely and definitive resolution of the question presented.....................................................4
D. Granting this petition would not unnecessarily complicate proceedings before this Court .........................5
TABLE OF AUTHORITIES
Cases:
Department of Health & Human Servs. v. Florida, 132 S. Ct. 840 (2011).................................................................5
INS v. Chadha, 462 U.S. 919 (1983)....................................... 3, 5 Kinsella v. Krueger, 354 U.S. 1 (1957) .................................. 3, 4 Massachusetts v. Department of Health & Human
Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012) and 12-97 (filed July 20, 2012) .......... 2, 6
Constitution and statutes:
U.S. Const.: Art. III ............................................................................................1 Amend. V ................................................................................... 1, 4 Defense of Marriage Act, Pub. L. No. 104-199, § 3, 110 Stat. 2419 (1 U.S.C. 7) ................................. 1, 2, 3, 4, 5, 6 Internal Revenue Code, 26 U.S.C. 6013(a) ................................2
(I)

In the Supreme Court of the United States
No. 12-302 OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. JOANNE PEDERSEN, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
Respondent Joanne Pedersen agrees that the Court should grant the petition for a writ of certiorari before judgment, and the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) agrees that the question presented by this case— whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to persons of the same sex who are legally married under state law—warrants this Court’s immediate review. BLAG nevertheless opposes this petition on four grounds: (1) certain plaintiffs might lack Article III standing to pursue their income-tax claims; (2) the federal petitioners might lack appellate standing to seek this Court’s review; (3) certiorari before judgment is not warranted because the petitions for a writ of certiorari in Massachusetts v. Department of
(1)

2
Health & Human Services, 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012) and 12-15 (filed July 3, 2012), present the same question; and (4) granting this petition would unnecessarily complicate proceedings before the Court. None of those asserted grounds warrants denial of the present petition.
A. The Internal Revenue Code Poses No Obstacle To Review Of DOMA Section 3 In This Case
BLAG contends that “[m]any” of the plaintiffs might lack standing to pursue their DOMA challenges arising from the denial of income-tax claims because Internal Revenue Code Section 6013(a), which provides that “[a] husband and wife may make a single return jointly of income taxes,” 26 U.S.C. 6013(a), may independently bar their claims. No. 12-302 Br. in Opp. 22. BLAG, however, does not contend that all plaintiffs in this case lack standing. Accordingly, regardless of the merits of BLAG’s argument, Section 6013(a) simply cannot affect this Court’s ability to resolve the constitutionality of Section 3 of DOMA in this case. As it turns out, only four of the thirteen petitioners raise claims based on joint filing; the other plaintiffs’ claims underlying the Section 3 challenge arise in other statutory contexts. See No. 12-302 Pet. 3-4; No. 12-231 Pedersen Reply Br. 3. For that reason, BLAG ultimately acknowledges that the purported standing issue it raises here does not affect this Court’s jurisdiction. Nos. 12-63 and 12-307 BLAG Supp. Br. 6.

3
B. Federal Petitioners, As Defendants Against Which Judgment Was Entered, Have Standing To Seek Certiorari
As explained more fully in the government’s reply brief in No. 12-15 (at 2-6), this Court’s precedents make clear that petitioners, as federal entities and officials charged with Section 3’s enforcement and against which judgment was entered below, are proper parties to invoke this Court’s jurisdiction to review the judgment in this case. 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 seek review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”). BLAG’s appellate-standing objection thus lacks merit.
BLAG’s objection not only is foreclosed by this Court’s decision in Chadha, but BLAG itself concedes (No. 12-302 Br. in Opp. 22; No. 12-307 Supp. Br. 9) that its objection may have even less force in the context of a petition for a writ of certiorari before judgment. In Kinsella v. Krueger, 354 U.S. 1 (1957), for example, the Court reviewed the district court’s denial of a writ of habeas corpus based on a petition for a writ of certiorari before judgment filed by the government, the prevailing party in the district court. See id. at 5. Although the district court’s ruling was favorable, the government filed the certiorari petition in order to supply an alternative vehicle to Reid v. Covert, which was then pending on appeal, for addressing Congress’s power to authorize the trial by court-martial of civilians accompanying the Armed Forces overseas. Gov’t Pet. 5-7, Kinsella, supra (No. 713). The government’s petition stated that it was

4
“clear, of course, that the party prevailing in the district court may seek certiorari before judgment.” Id. at 6 n.*. The Court granted the petition, consolidated the two cases, and decided them together. While the Court did not expressly address whether the government had properly invoked this Court’s jurisdiction in Kinsella, 354 U.S. at 5, the government’s standing to do so is even clearer in this case. Here, unlike in Kinsella, the government was not a prevailing party. Rather, the district court below entered judgment against petitioners. Accordingly, the government’s standing to seek certiorari before judgment in this case should be beyond dispute.
C. Certiorari Before Judgment Is Warranted Here If Necessary To Ensure Timely and Definitive Resolution Of The Question Presented
All parties in this case agree that the question of Section 3’s constitutionality is one of exceptional public importance warranting this Court’s expeditious review. BLAG nevertheless argues that “[t]here is no reason to take the extraordinary step of granting certiorari before judgment here when the exact same issue is presented in a pending petition for certiorari after judgment” in Massachusetts. No. 12-302 Br. in Opp. 1. That argument fails to grapple with the principal justification for the government’s petition in this case: to ensure that this Court can timely and definitively resolve Section 3’s constitutionality. No. 12-302 Pet. 13. For the reasons explained in the government’s supplemental and reply briefs in United States v. Windsor, No. 12-307, in which the court of appeals has now issued its decision, the Court should grant review in that case. If, however, this Court were to determine that neither Windsor nor Massachusetts provides an appropriate vehicle to do so, this case could.

5
Although BLAG claims that the government could have sought certiorari before judgment “years ago” (No. 12-302 Br. in Opp. 14), the first court of appeals decision holding that Section 3 violated the Fifth Amendment’s guarantee of equal protection was issued on May 31, 2012. That recent development significantly changed the landscape of DOMA litigation, which has continued to advance quickly and has produced similar holdings in every court to have considered the issue since, including the Second Circuit’s decision in Windsor. In any event, BLAG agrees with the government that Section 3’s constitutionality now warrants this Court’s prompt resolution.
D. Granting This Petition Would Not Unnecessarily Complicate Proceedings Before This Court
BLAG expresses concern that granting this petition would “needlessly complicat[e]” this Court’s review on the merits. No. 12-302 Br. in Opp. 1. The complication it repeatedly refers to is the possible need for a briefing and argument order to realign the parties. See id. at 1, 17, 24-25. The potential issuance of a modified briefing and argument schedule, however, involves a modest step readily within the Court’s capability and prior practice.
In Chadha, for example, in which the Executive Branch agency (INS) appealed to the Court and in which the Court also granted certiorari petitions filed by both the Senate and House of Representatives, the parties filed briefs in the following order: the Senate and House filed “top-side” briefs as appellee-petitioner on the same day; the individual alien filed a “bottom-side” brief as appellee-respondent 42 days later, and the INS also filed a “bottom-side” brief shortly thereafter; and the Senate and House of Representatives filed reply briefs 30 days after the filing of the INS brief. See also

6
Department of Health & Human Servs. v. Florida, 132 S. Ct. 840 (2011) (No. 11-398) (ordering briefing schedule on Anti-Injunction Act issue under which Courtappointed amicus curiae filed first; the Solicitor General and plaintiffs-respondents filed next simultaneously; the Solicitor General and plaintiffs-respondents then filed simultaneous reply briefs; and Court-appointed amicus filed its reply last). Of course, unlike in Chadha and Massachusetts, BLAG has not filed its own petition for certiorari in this case.
* * * * * For the reasons explained in the government’s supplemental brief (at 10-11) and reply brief in United States v. Windsor, No. 12-307, the Court should grant the petition for a writ of certiorari in that case. Although Department of Health and Human Services v. Massachusetts, petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), is also a case in which a court of appeals has rendered a decision, Windsor now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals in Windsor was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue. In the event the Court grants review in Windsor, it should hold the petitions in Massachusetts pending final resolution on the merits. In the event the Court decides that neither case in which the court of appeals has issued a decision provides an appropriate vehicle, it

7
should grant the government’s petition for a writ of certiorari before judgment in either Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012), or Office of Personnel Management v. Pedersen, No. 12302 (filed Sept. 11, 2012).
Respectfully submitted.

NOVEMBER 2012

DONALD B. VERRILLI, JR. Solicitor General

 </s> No.
IN THE
Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., and
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,

Respondents. ________
On Petition for a Writ of Certiorari before Judgment to the United States Court of Appeals for the Second Circuit
________

PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT

________

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

COUNSEL FOR PETITIONERS JOANNE PEDERSEN, ET AL.

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act defines “marriage” for purposes of all federal statutes, regulations, and agency interpretations as the union of one man and one woman and defines “spouse” as a husband or wife of someone of the opposite sex. 1 U.S.C. § 7. As a result, with respect to more than 1,100 federal statutes, lawfully married same-sex couples are denied the benefits and responsibilities accorded to lawfully married opposite-sex couples.
The question presented is:
Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

ii
PARTIES TO THE PROCEEDING
The Petitioners are Joanne Pedersen and Ann Meitzen, Gerald V. Passaro II, Lynda DeForge and Raquel Ardin, Janet Geller and Joanne Marquis, Suzanne and Geraldine Artis, Bradley Kleinerman and James Gehre, and Damon Savoy and John Weiss. The Petitioners were the Plaintiffs in the District Court, and they are the Appellees in the Court of Appeals.
The Office of Personnel Management; Timothy F. Geithner, Secretary of the Treasury; Hilda L. Solis, Secretary of Labor; Michael J. Astrue, Commissioner of the Social Security Administration; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Douglas H. Shulman, Commissioner of Internal Revenue; Eric H. Holder, Jr., Attorney General; John Walsh, Acting Comptroller of the Currency; and the United States of America were defendants in the District Court and are Appellants in the Court of Appeals.
The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) was the Intervenor-Defendant in the District Court and is the Intervenor-Appellant in the Court of Appeals.

iii

TABLE OF CONTENTS

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING ............................ii

TABLE OF AUTHORITIES........................................ v

OPINION BELOW ...................................................... 1

JURISDICTION .......................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................... 2

STATEMENT OF THE CASE .................................... 3

A. DOMA’S ENACTMENT ................................... 3

B. PETITIONERS SUFFER FROM THEIR DISPARATE TREATMENT UNDER DOMA.................................................7

C. PROCEDURAL BACKGROUND AND THE OPINION BELOW ................................ 14

REASONS FOR GRANTING THE WRIT................ 24

I. THIS CASE RAISES QUESTIONS OF NATIONAL IMPORTANCE THAT ARE RIPE FOR REVIEW. ........................................... 24

II. THE EXCEPTIONAL IMPORTANCE OF

THE QUESTION PRESENTED AND THE

CIRCUMSTANCES

OF

THIS

PARTICULAR

CASE

WARRANT

GRANTING CERTIORARI BEFORE

JUDGMENT......................................................... 27

CONCLUSION .......................................................... 32

iv
APPENDIX A – Memorandum Opinion, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. July 31, 2012) ............................................ 1a
APPENDIX B – Judgment, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10cv-1750 (D. Conn. Aug. 2, 2012) ...................... 118a
APPENDIX C – Notice of Appeal, Pedersen v. Office of Personnel Management, Civ. A. No. 3:10-cv-1750 (D. Conn. Aug. 17 2012) ...... 120a

v TABLE OF AUTHORITIES CASES Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...........4-5 Baker v. Nelson, 409 U.S. 810 (1972)................... 15 Board of Trustees of Alabama State University v. Garrett, 531 U.S. 356 (2001)................................................................ 31 Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)........................................... 17, 32 De Sylva v. Ballentine, 351 U.S. 570 (1956) .......... 4 Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979) .................................................... 4 Frontiero v. Richardson, 411 U.S. 677 (1973)................................................................ 19 Lawrence v. Texas, 539 U.S. 558 (2003) .............. 17 Massachusetts v. DHHS, 682 F.3d 1 (1st Cir. 2012).................................................... 24, 29 Plyler v. Doe, 457 U.S. 202 (1982) .................. 16, 32 United States v. Virginia, 518 U.S. 515 (1996)................................................................ 17 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................... 32 CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. amend. V .............................................. 2 18 U.S.C. § 2333 ...................................................... 7 28 U.S.C. § 1254 .................................................... 23

vi 28 U.S.C. § 1254(1).................................................. 2 28 U.S.C. § 1291 .................................................... 23 28 U.S.C. § 2101(e).................................................. 2 Defense of Marriage Act, Pub. L. No. 104-
199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ....................................................... 2, 3 Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951).................................................................. 7 LEGISLATIVE MATERIALS 142 Cong. Rec. 16,799 (1996).................................. 6 142 Cong. Rec. 16,972 (1996).................................. 6 142 Cong. Rec. 17,074 (1996).................................. 6 142 Cong. Rec. 17,082 (1996).................................. 6 142 Cong. Rec. 17,089 (1996)...............................5-6 142 Cong. Rec. 22,334 (1996).................................. 6 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................... 5, 7, 31 OTHER AUTHORITIES Nancy Cott, Public Vows (2000) ............................. 3 Eugene Gressmen et al., Supreme Court Practice § 2.4 (9th ed. 2007) ....................... 23-24 I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990) ................................................................... 4 Petition for a Writ of Certiorari, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 ............................................... 25, 26

vii Petition for a Writ of Certiorari, DHHS v.
Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 ................................ 25 Petition for a Writ of Certiorari, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 ............................................ 28 U.S. General Accountability Office, GAO04-353R (2004) ................................................... 7 U.S. General Accountability Office, GAO/OGC-97-16 (1997) ..................................... 7

In the Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
Respondents, and ________ BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondent. __________
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT __________
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
Joanne Pedersen et al., the Plaintiffs in the District Court and Appellees in the Court of Appeals, respectfully petition for a writ of certiorari before judgment in a case pending on appeal to the United States Court of Appeals for the Second Circuit.
OPINION BELOW
The opinion of the District Court for the District of Connecticut granting Petitioners’ motion for summary judgment and denying BLAG’s motion to

2
dismiss, Pet. App. 1a - 117a, is published at 2012 WL 3113883, __ F. Supp. 2d __.
JURISDICTION
The judgment of the District Court was entered on August 2, 2012. Pet. App. 119a. A Notice of Appeal was filed on August 17, 2012. Pet. App. 120a121a. The case is docketed in the Court of Appeals for the Second Circuit as No. 12-3273. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) and 28 U.S.C. § 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment provides: “No person shall *** be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), 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.

3
STATEMENT OF THE CASE
Joanne Pedersen and the other 12 Petitioners are all lawfully married or widowed men and women who exercise or have exercised all of the rights and discharged all of the responsibilities of married people in the respective states of their marriages – Connecticut, Vermont or New Hampshire. Their marriages, however, are denied any federal recognition by Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), which for the first and only time in history establishes a federal definition of “marriage” and “spouse.” While Connecticut, Vermont and New Hampshire all treat the Petitioners and all other married same-sex couples identically to their married opposite-sex counterparts, DOMA takes the unitary class of married persons in these three states and divides it in two: those who are married for federal purposes and those whose marriages do not exist for any federal purpose.
A. DOMA’s Enactment
From the founding of this country until DOMA’s enactment in 1996, the states governed marriage. State laws have always borne differences as to the age of consent, the permissibility of interracial marriages, permissible degrees of consanguinity, the availability of divorce, and the recognition of common law marriages. Such conflicts sometimes led to “explosive” debates among the States, see, e.g., Nancy Cott, Public Vows 163 (2000), but the federal government never before inserted itself into the

4
debate by defining any dimension of marital eligibility for all federal purposes.
Instead, the federal government looked, as it always had, to the relevant state’s definition of marriage: a couple that was married under the law of the state was married under the laws of the federal government. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“The scope of a federal right is . . . 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 when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.”).
The federal government maintained its deference to state law notwithstanding wide diversity in the benefits available to couples. As the Fourth Circuit explained in Ensminger v. Commissioner, 619 F.2d 189 (4th Cir. 1979), the diversity:
produces some inequality in taxation, but it illustrates the deference Congress has demonstrated for state laws in this area and its attempts to insure that, in the application of federal tax laws, taxpayers will be treated in their intimate and personal relationships as the state in which they reside treats them.
Id. at 191, accord I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990).
In 1996, Congress disrupted this centuries-old status quo by passing DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin,

5
852 P.2d 44 (Haw. 1993), which raised the possibility that same-sex-couples could begin marrying in the near future. The House Judiciary Committee’s Report on DOMA 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.” H.R. Rep. No. 104-664 at 10-11 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15.
The House Report on DOMA acknowledged that “[t]he determination of who may marry in the United States is uniquely a function of state law,” id. at 3, reprinted in 1996 U.S.C.C.A.N. at 2907, but stating that the Committee was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’” id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916, it claimed Congressional interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging responsible child-rearing and procreation,” conserving scarce resources, and reflecting Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12, 13, 16, reprinted in 1996 U.S.C.C.A.N. at 2916, 2917, 2920 (footnote omitted).
The remarks of Representative Hyde, thenChairman of the House Judiciary Committee, were blunt but typical: “Most people do not approve of homosexual conduct . . . and they express their disapprobation through the law . . . . It is . . . the only way possible to express this disapprobation.” 142

6
Cong. Rec. 17,089 (1996). In the floor debate on DOMA, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack on God’s principles.” Id. at 16,972 (statement of Rep. Coburn); id. at 17,074 (statement of Rep. Buyer); id. at 17,082 (statement of Rep. Smith). They argued that marriage by gay men and lesbians might be “the final blow to the American family.” Id. at 16,799 (statement of Rep. Largent). Senator Helms stated:
[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.
Id. at 22,334.
Although DOMA amended the eligibility criteria for a vast number of benefits, rights, and privileges dependent upon marital status, the relevant Congressional committees did not engage in any meaningful examination of the scope or effect of the law. Neither chamber of Congress heard testimony from economists, historians, sociologists or specialists in child welfare. Congress did not solicit relevant agency heads nor endeavor in any other way to understand the scope of the Act. Indeed, the

7
House Report characterized Section 3 as a “narrow federal requirement.” H.R. Rep. No. 104-664 at 30, reprinted in 1996 U.S.C.C.A.N. at 2935.
But DOMA neither was nor is “narrow.” Since its passage, DOMA has implicated more than 1,100 federal statutory provisions, extending from Social Security to taxation and health care, from employee benefits and spousal privileges in federal court to terrorism victim recovery. See, e.g., U.S. General Accountability Office, GAO-04-353R (2004); U.S. General Accountability Office, GAO/OGC-97-16 (1997); 18 U.S.C.§ 2333.
Not surprisingly, defining a term for the entirety of the United States Code is uncommon, and at the time of DOMA, no new definitions had been added to the Dictionary Act, and the existing definitions had not been amended, for nearly half a century. See Dictionary Act, ch. 655, § 1, 65 Stat. 710 (1951) (substituting “used” for “use” in fourth paragraph of 1 U.S.C. § 1).
B. Petitioners Suffer From their Disparate Treatment Under DOMA
DOMA compels all federal agencies to disregard the lawful marriages entered into by each of the Petitioners, who married after long and dedicated relationships to each other. As a class-based enactment, DOMA is a federal declaration that the Petitioners’ marriages are not real marriages and merit no respect under any federal law. This causes “a great deal of stress and worry,” is “extremely disheartening” and forces individuals to “disregard [their own] marital status.” It makes the Petitioners

8

feel “singled out for disrespect” and “like second-class citizens” with marriage that are “not respected and valued,” and that don’t “mean what [they] should, or what other people’s marriages mean.” It “artificially divides [their] family” and conveys to their children “that our marriage and family and don’t count” in the eyes of their government.1

For the thirteen Petitioners, there is no dispute

that DOMA denies them equal access to particular

federal programs.2

DOMA concretely and

continuously harms them and their children. The

record reveals the following harms:

Joanne Pedersen and Ann Meitzen: Joanne Pedersen, a retired civilian employee of the Department of the Navy, Office of Naval Intelligence with over 30 years of service, and Ann Meitzen, a supervisor for a case management agency for the elderly and disabled, have been a committed couple since 1998 and married in Connecticut on December 22, 2008, their 10th Anniversary. Joanne sought to add Ann to her Federal Employee Health Benefit (FEHB) insurance coverage, but her request was

1 The quotations are taken from unrebutted Affidavits from the Plaintiffs (now Petitioners) in Support of their Motion for Summary Judgment. Other further undisputed facts are drawn from the Amended Complaint.
2See nn. 3-6, 8-9 and 11 infra. Although intervenors also advanced in the District Court a construction of the tax code provision on joint filing that, like DOMA, would deny a “married” filing status only to married same sex couples, the District Court correctly rejected their alternate statutory argument. See Pet. App. 20a-24a.

9
denied because of DOMA.3 Ann suffers from a chronic lung condition. She and Joanne were harmed by DOMA because, without access to Joanne’s FEHB coverage, Ann had to delay her retirement because of the high cost of private insurance. This impacted Ann’s health and their quality of life.
Gerald V. Passaro II: Gerald (“Gerry”) V. Passaro II, a disabled hairdresser, is the surviving spouse of Thomas (“Tom”) Buckholz, who was a senior chemist at The Bayer Corporation (Bayer) prior to his untimely death in January 2009 at the age of 47. At that point, Gerry and Tom had been a committed couple for over 13 years and had married in Connecticut on November 26, 2008. Gerry had been Tom’s sole caretaker, mostly at home, during the 18 months of Tom’s struggle with lymphoma. When Tom died, Gerry learned from Bayer that, because of DOMA, although Tom was fully vested in Bayer’s defined benefit pension plan, he was not entitled to any pension benefit, including the Qualified Preretirement Survivor Annuity (QPSA) otherwise mandated by ERISA for surviving spouses. In addition, Gerry applied for, and was denied, the lump-sum Social Security death benefit of $255 on
3 Joanne first sought FEHB coverage for her wife in 2009 within the 60-day period in which to change enrollment due to marriage. That request was denied. When she attempted to reapply for benefits in 2010 during open enrollment season, the online system would not accept her entries, and agency staff confirmed that Ann was not eligible as Joanne was of the same sex.

10
the ground that “your marriage does not meet the requirements under Federal law for payment ….”4
Raquel Ardin and Lynda DeForge: Raquel Ardin, a Postal Service worker for 25 years and now on disability retirement since 2005 as a result of a neck injury sustained during her military service in the U.S. Navy, and Lynda DeForge, a current Postal Service employee of more than 25 years, have been a committed couple for over 30 years since 1977 and married in Vermont since September 7, 2009. Because of degenerative arthritis in her neck, Raquel needs regular, quarterly treatments in Connecticut for which Lynda’s presence is required. Lynda is eligible under the Federal Medical Leave Act (FMLA) and, therefore, applied for FMLA leave one day every three months to care for her spouse during these treatments. The Postal Service denied that leave because of DOMA.5 In addition, Raquel and Lynda are each individually enrolled in the FEHB program for “Self Only” coverage. Lynda has sought, during open enrollment, to change her status from “Self Only” to “Self and Family” to include Raquel as it would save the couple money to be covered under a
4 Gerry received two denial letters from the Social Security Administration on January 19, 2011 and March 22, 2011, respectively.
5 Lynda received a letter from the Postal Service, dated May 13, 2010, stating that her request for leave was denied “as same sex marriage is not recognized by Federal law under the Defense of Marriage Act.”

11
single plan. The request was denied because of DOMA.6
Janet Geller and Joanne Marquis: Janet Geller and Joanne Marquis are both retired New Hampshire school teachers, who together taught for over 68 years. They have been a committed couple for well over 30 years, since 1979; and they were married in New Hampshire on May 3, 2010. Both Janet and Joanne receive a pension through the New Hampshire Retirement System (NHRS). However, because Joanne had over 30 years of public school service, she is qualified for a medical cost supplement – to help pay for the Medicare Part B supplemental coverage – for herself and her spouse.7 Nonetheless, when Joanne applied for the spousal benefit ($375.66/month for Janet) following their marriage, the request was denied because of DOMA.8
Geraldine and Suzanne Artis: Geraldine Artis, currently a student pursuing a new career in counseling, and Suzanne Artis, a librarian, have shared a committed partnership for 18 years and were married in Connecticut on July 11, 2009.
6 On November 8, 2010, Lynda sought to apply using the online PostalEASE system, which advised her that “same sex spouses are not considered eligible family members under FEHB.”
7 Janet is not eligible for the benefit because she does not have the requisite 30 years of service in the public sector.
8 The NHRS advised Joanne that DOMA controls the meaning of spouse under the Internal Revenue Code and that to act contrary to the Code would cause the NHRS to lose its tax qualified status.

12
Geraldine and Suzanne are raising three boys – one now 14 and twins who are 12. Despite being married for the 2009 tax year, Geraldine and Suzanne were forbidden by DOMA from filing their federal income tax return as Married Filing Jointly. Instead, they have been required by DOMA to file as Head of Household (Suzanne) and Single (Geraldine). Had they been permitted to file as the married couple that they are, they would have paid $1,465 less in federal income tax for 2009.9 The IRS formally denied their request by letter dated January 19, 2011, noting that “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.”
Bradley Kleinerman and James Flint Gehre: Bradley (“Brad”) Kleinerman, a human resources director for CIGNA Healthcare, and James Flint Gehre (“Flint”), a stay-at-home parent, have been a committed couple for more than 20 years since 1991. They married on the 18th Anniversary on March 6, 2009 in their home state of Connecticut. Brad and Flint have three sons – ages 21, 20 and 11. They too
9 For the tax year 2009, Geraldine and Suzanne submitted to the IRS an amended federal income tax return on IRS Form 1040X, Amended U.S. Individual Income Tax Return, with requests for refunds representing the difference between what the couple had paid as taxes and what the couple would have paid as joint filers. With that filing, they attached a Form 8275 Disclosure Statement and a Form 8275-R, Regulation Disclosure Statement to explain the changes to their earlier filed federal income tax returns. As a precondition to filing suit, each of the other Petitioners with tax-based harms took these same steps for the tax year at issue for them.

13
have been required to pay more in federal income tax for tax year 2009 because DOMA forbids them from filing as Married Filing Jointly. Instead they paid an additional $2,085 in federal income tax 2009 (and substantially more in 2010) because Brad could only file as Head of Household.10
Damon Savoy and John Weiss: Damon (“Jerry”) Savoy, an attorney with the Office of the Comptroller of the Currency (OCC) for 20 years, and John Weiss, an interior designer but currently a full-time parent, have been in a committed relationship for 13 years and married in their home state of Connecticut on October 9, 2010. They are raising three adopted children (now ages 13, 11 and 3). Jerry has an FEHB health insurance Self and Family plan that covers himself and the couple’s three children. When John’s COBRA coverage from his prior employment expired in July 2010, he had difficulty obtaining insurance on the private market because of his preexisting condition of diabetes. Following their marriage, in November 2010, Jerry sought to add John to his existing Self and Family plan. That request was denied because of DOMA,11 leaving John in the private insurance market where he has been paying at least $449 per month for health insurance.
10 Flint had no income in 2009 and thus was not required to file any federal return as an individual.
11 Jerry received his first denial from the Anthem Blue Cross Blue Shield representative. Denial was confirmed by the Human Resources Department of the OCC, which explained that coverage is governed by OPM rules which reference DOMA in determining eligible family members.

14
C. Procedural Background And The Opinion Below
The Petitioners filed their Complaint in the District Court of Connecticut on November 9, 2010, alleging that DOMA’s discrimination among married couples violates the equal protection guarantee of the Fifth Amendment to the Constitution. Pedersen v. Office of Personnel Management, et al., 3:10-cv-1750 (VLB), Dkt. No. 1.12
On February 23, 2011, the President and Attorney General notified Congress (and subsequently the District Court on February 25, 2011, see Dkt. No. 39) of their conclusion that DOMA is unconstitutional and violates the equal protection guarantee of the Fifth Amendment. See Dkt. No. 39. The Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) subsequently moved on April 26, 2011 to intervene for a limited purpose, Dkt. No. 48, and the District Court granted that motion “to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. § 7” on May 27, 2011. Dkt. No. 55.
Following discovery, Petitioners moved for summary judgment with supporting plaintiff, expert and counsel affidavits on July 15, 2011, Dkt. Nos. 6076; and BLAG moved to dismiss, Dkt. Nos. 80-83.13 With subsequent opposing, reply and surreply
12 A First Amended Complaint was filed on January 14, 2011. Dkt. No. 33.
13 The Federal Defendants also filed a Motion to Dismiss. Dkt. No. 85.

15
memoranda of law and supplemental affidavits, Dkt. Nos. 94-100 and 102-104, briefing was concluded on dispositive motions; and the matter was submitted to the court for decision.
The district court issued its decision on July 31, 2012, granting the motion for summary judgment, denying BLAG’s motion to dismiss, and holding that DOMA violates the Fifth Amendment. Pet. App. 1a117a. After concluding that “classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny,” the court found it unnecessary to apply such scrutiny to DOMA, concluding that “it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny.” Id. at 86a. The court concluded that, “having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision.” Id. at 117a.
In analyzing the Petitioners’ Equal Protection claim, Judge Bryant began with the question of the appropriate level of scrutiny.14 To BLAG’s argument
14 As a preliminary matter, the court rejected BLAG’s argument that the constitutionality of DOMA had already been decided by Baker v. Nelson, 409 U.S. 810 (1972), correctly noting that Baker is, by definition, of limited precedential value and did not address the same question as presented in the current litigation. Pet. App. 24a - 27a. Specifically, the court noted that this case involves neither the right of states to authorize marriages of same-sex couples nor whether there is a

16 that it would be a “radical step” to find sexual orientation a suspect classification when this Court has yet to reach such a holding and several Courts of Appeals have held that it is not, the court correctly noted that the question is open in the Second Circuit and has yet to be resolved by this Court. Id. at 32a33a.
Furthermore, while acknowledging reason for restraint in identifying new suspect classifications, the court noted that, at the same time, the Equal Protection Clause serves to restrain legislative action that is “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Id. at 38a (quoting Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (internal quotation marks omitted)). To that end, a court “must not be tempted to tie the conception of judicial restraint to historic notions of equality.” Id. at 39a. Given the state of the law and the import of equal protection guarantees, the court saw its duty to “meaningfully assess” whether “sexual orientation constitutes a suspect or quasi-suspect class.” Id.
The court then engaged in what is certainly the most comprehensive analysis yet undertaken by a federal court in a DOMA case as to the factors variously assessed by this Court on the question in the context of a detailed record and sustained argument by the parties. Id. at 39a-86a.
fundamental right to marry where, as here, the Petitioners were all validly married by their home states. Id. at 26a-27a.

17
As the court noted, this Court has put its greatest emphasis on two factors: (1) whether a group has suffered a history of invidious discrimination; and (2) whether the characteristics that distinguish the group’s members bear no relation to their ability to contribute to society. Id. at 32a. See Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985); United States v. Virginia, 518 U.S. 515, 531-32 (1996).
This court has previously recognized that gay men and lesbians have historically been subject to discrimination. Lawrence v. Texas, 539 U.S. 558, 571 (2003) (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral”). Nonetheless, the court below was careful to assess BLAG’s argument to the contrary. To BLAG’s argument that the history of discrimination is the “relatively short-lived” product of the twentieth century, the court examined the extensive evidence in the record and concluded:
the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can be seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
…

18
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination.
Id. at 43a, 49a.
The court below also explained, in detail, why
Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.
Id. at 53a.
Therefore, the court determined that this factor “weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.” Id.
Recognizing that whether a characteristic is “defining or immutable” is not a necessary or essential factor for this Court in triggering heightened scrutiny, the court below nonetheless carefully examined the law, the record and the arguments on this issue, id. at 54a-69a, concluding that Ninth Circuit precedent on immutability was:

19
persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom.
Id. at 69a.
Turning to the last possible, but non-essential, factor – minority status or lack of political power – the court below noted two fundamental points: (1) there is no dispute “that gay men and lesbians are both nationally and locally a minority”; and (2) there is no requirement that the group have a “total lack of political power.”15 Id. at 71a, 73a-74a.
15 The district court noted that this factor gets less weight given that gender is quasi-suspect while the group is neither a minority nor powerless. See Frontiero v. Richardson, 411 U.S. 677, 686 n.17 (1973) (acknowledging that “women do not constitute a small and powerless minority”). Pet. App. at 74a.

20
Recognizing that the proper standard is whether discrimination against the group is unlikely to be rectified soon by legislative means and that “effecting widespread change through the majoritarian process will be onerous,” Id. at 75a, the court rejected all of BLAG’s arguments that gay people are politically powerful, noting that the examples BLAG supplied were limited and anecdotal.
Ultimately, the court concluded, while gay men and lesbians have achieved “modest successes,” they still face “pervasive discrimination in the political arena” and lack meaningful political power. Id. at 83a.
Based on this extensive analysis, the court found that sexual orientation classifications are entitled to heightened judicial scrutiny.
Nonetheless, since this Court has been able to resolve past cases involving sexual orientation discrimination applying rational basis review, the district court analyzed DOMA under a traditional rational basis review standard. Id. 84a-86a.
Again, the court below conducted a thorough analysis of every rationale offered in support of DOMA – whether articulated by Congress in 1996 or developed post hoc in BLAG’s defense of the statute.
First, both Congress and BLAG put forth the proposition that DOMA is justified by an interest in maintaining “traditional marriage” and the link between marriage and the bearing and raising of children. Id. at 90a-91a. The court carefully unpacked claims by BLAG based on the experience

21
of Scandinavian countries and demonstrated that there is no support for any rational connection between denying federal benefits to married samesex couples and the objective of discouraging extramarital procreation. Id. at 94a-96a. In addition, the court observed that DOMA has no impact on the ability of same-sex couples to have and rear children, while inflicting “significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections.” Id. at 96a-98a.
Second, as to the goal of ensuring that children have parents of both sexes, the court found DOMA both too narrow and too broad to be rationally related to this goal since childless different-sex couples qualify for federal marital benefits while DOMA reaches many laws unrelated to rearing children. Id. at 101a-102a. Moreover, DOMA does not in any way impede same-sex couples from having and raising children; and if the goal is to discourage same-sex couples from doing so, serious constitutional questions are raised regarding the burdening of a protected fundamental right. Id. at 102a-103a.
Third, as to defending traditional notions of morality, beyond noting, as have other courts, that an effort to reinforce principles of morality cannot withstand rational basis review in light of Lawrence, the court noted that there is no uniform position in the United States today on the morality of marriage for same-sex couples such that to uphold DOMA on morality grounds alone would “fly in the face of the

22
fundamental principles of religious freedom and liberty” of our country. Id. at 104a-106a.
Fourth, as to the asserted objective of preserving government resources, the court noted that the only evidence in the record demonstrated that there was no basis in reality for this argument. Id. at 106a108a. In addition, the court applied settled law from this Court that
“more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Id. at 108a.
Finally, the court rejected BLAG’s justifications of “uniformity” and “caution.” As to caution, the court wrote:
Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see DKT. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to

23
withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.
Id. at 114a.16
As to claimed interests in uniformity, consistency and ease of administration of federal law, the court held that the justifications were not rational as DOMA: (1) adds a new element of complexity where previously the only question was whether a couple was “validly married under the laws of a state”; and (2) creates inconsistency in the distribution of federal marital benefits by excluding one category of marriages.17 Id. at 114a-116a.
The government defendants have filed a timely notice of appeal to the United States Court of Appeals for the Second Circuit. Pet. App. 120a-121a. The court of appeals has jurisdiction pursuant to 28 U.S.C. § 1291. The appeal was docketed as No. 123273.
This case is, therefore, “in the court[] of appeals” within the meaning of 28 U.S.C. § 1254. See Eugene
16 The court also found that caution is “simply a modified articulation” of the justification of tradition that the court had already rejected as insufficient. Pet. App. at 115a.
17 The court also addressed the asserted Congressional interest in protecting state sovereignty, correctly noting that that interest was only relevant to Section 2 of DOMA, which is not in issue in this litigation. Pet. App. at 109a-112a.

24
Gressmen et al., Supreme Court Practice § 2.4, at 8384 (9th ed. 2007).
REASONS FOR GRANTING THE WRIT
I. This Case Raises Questions Of National Importance That Are Ripe For Review.
This case raises questions of national importance. The denial of federal recognition of marriages mandated by section 3 of DOMA “affects a thousand or more generic cross-references to marriage in myriad federal laws.” Massachusetts v. DHHS, 682 F.3d 1, 6 (1st Cir. 2012). More than 100,000 samesex married couples are disadvantaged; and the states “that choose to legalize same-sex marriage” also suffer “potentially serious adverse consequences.” Id. 6 and n.3.
Therefore, although the Petitioners agree with the district court’s decision in this case that DOMA is unconstitutional, the Petitioners respectfully request that the Court grant this petition for review in order that the question of the constitutionality of DOMA may be authoritatively decided by this Court.
There are a number of reasons why review is appropriate at this time. First, as the Federal Defendants have noted in seeking review in this Court of the First Circuit’s decision in Massachusetts v. DHHS where DOMA has been held unconstitutional:
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 has yet passed on the

25 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 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); Robin 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). Petition for a Writ of Certiorari at 13-14, DHHS v. Massachusetts, __ S. Ct. __ (2012) (No. 12-15), 2012 WL 2586937 (“DOJ Pet.”).18
18 BLAG makes the identical point in its petition for review of the First Circuit’s decision. Petition for a Writ of Certiorari at

26

For this reason alone, the arguments for a grant of review in this case are strong. Second, and in addition, review is appropriate now as there is a great practical need for an authoritative decision from this Court. As BLAG has noted, there have been conflicting decisions on DOMA’s constitutionality in various federal courts throughout the country, and additional DOMA challenges are pending. BLAG Pet. 19-21.

Moreover, again as noted by BLAG, while the Administration is not defending DOMA, it is continuing to enforce the statute, with the result that litigation over DOMA’s constitutionality continues to develop throughout the country as cases arising out of the enforcement of the statute continue to recur. BLAG Pet. 17.

Third, as noted in the Statement above, each of

the Petitioners demonstrates existing and ongoing

economic harms as well as other burdens on their

valid and existing marriages. Any continued delay

in the resolution of the clear constitutional question

presented by this case and this petition for review

only exacerbates those harms unnecessarily for these

Petitioners and for all other legally married same-sex

couples throughout the country.

Moreover,

continued delay only continues the considerable

difficulties experienced by state and local

governments and private businesses that are

compelled to treat married same-sex couples

differently from other married couples in the myriad

17-18, BLAG v. Gill, __ S. Ct. __ (2012) (No. 12-13), 2012 WL 2586935 (“BLAG Pet.”).

27
circumstances that arise in the course of day-to-day life.
Finally, as multiple courts have recently recognized, there are compelling arguments supporting the view the Congress overstepped its constitutional bounds when it decided for the first time to deny all recognition to a single class of statesanctioned marriages. This Court should grant review to affirm that Section 3 of DOMA violates the guarantees of equal protection secured by the Fifth Amendment.
II. The Exceptional Importance of the Question Presented and the Circumstances of this Particular Case Warrant Granting Certiorari Before Judgment.
As the Federal Defendants have noted in seeking certiorari before judgment in another DOMA challenge pending in a court of appeals,
Under this Court’s rules, a petition for a writ of certiorari before judgment in a case pending in a court of appeals will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This Court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions. See, e.g., United States v. Fanfan, 543 U.S. 220, 229 (2005)

28

(constitutionality of mandatory applications of

the United States Sentencing Guidelines);

Gratz v. Bollinger, 539 U.S. 244, 259-60 (2003)

(constitutionality

of

race-conscious

undergraduate

admissions

program);

Mistretta v. United States, 488 U.S. 361, 362,

371 (1989) (constitutionality of federal

Sentencing Guidelines); Dames & Moore v.

Regan, 453 U.S. 654, 667-668 (1981) (validity

of Iran hostage agreement); United States v.

Nixon, 418 U.S. 683, 686-687 (1974) (validity

of subpoena to the President); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584

(1952) (validity of the President’s steel seizure

order); Ex parte Quirin, 317 U.S. 1, 19-20

(1942) (validity of President’s assignment to a

military tribunal of jurisdiction over the trial

of belligerent saboteurs). See generally James

Lindgren & William R. Marshall, The

Supreme Court’s Extraordinary Power to

Grant Certiorari Before Judgment in the

Court of Appeals, 1986 Sup. Ct. Rev. 259.

Petition for a Writ of Certiorari at 14, OPM v. Golinski, __ S. Ct. __ (2012) (No. 12-16), 2012 WL 2586938 (“DOJ Golinski Pet.”).

For the reasons stated in Section I, above, the question presented here is one “of exceptional public importance” that “call[s] for definitive and timely resolution by this Court” such that “the petition for a writ of certiorari before judgment in this case should be granted.” DOJ Golinksi Pet. 13-14.

29
In addition, this particular case is an exceptionally good vehicle for this Court’s review. First, the Petitioners in this case have been disadvantaged by DOMA in a wide variety of different ways that demonstrate the breadth of DOMA’s impact on a range of important, large federal programs (e.g., federal income tax, federal employee and retiree workplace benefits, and Social Security benefits) and important federal statutes (e.g., ERISA and FMLA). See Massachusetts v. DHHS, 682 F.3d at 11 (“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”). DOMA is not a narrow statute that discriminates against gay men and lesbians in discrete contexts, but rather a broadbased enactment whose effects pervade the entire U.S. Code. Because they have been disadvantaged in so many different ways, the Petitioners in this case best represent the range of DOMA’s effects on married gay men and lesbians.
Moreover, there are no collateral or procedural issues or obstacles of any kind in this case; all the harms caused to the Petitioners are clearly and solely the consequence of the application of DOMA; and, as such, the question of the constitutionality of DOMA as a matter of equal protection guarantees is squarely presented for review.19
19 As discussed in note 2 supra, although BLAG attempted to argue below that the tax code would independently operate to

30
Second, in reviewing the constitutionality of DOMA, this Court should address the proper standard of review for classification based on sexual orientation and, in particular, whether heightened scrutiny applies to such classifications.
This Court has not decided what level of scrutiny applies to laws that discriminate on the basis of sexual orientation. The Second Circuit has also not ruled on the question. As a result, the district court, as noted above, recognized a duty, in light of the state of the law and the import of equal protection guarantees, to meaningfully assess whether sexual orientation is a suspect or quasi-suspect class. Pet. App. 38a-39a. Based upon the most complete record yet assembled in a DOMA case raising the question, as well as full briefing by the parties, the court below engaged in the most thorough review by any federal court to date in a DOMA case as to the proper analysis, under this Court’s guiding precedents, of the question of the proper standard of review for sexual orientation classifications. See id. at 39a-86a.
As a consequence, this Court can address the question of the standard of review in this case with confidence that the issue has been fully and exhaustively aired in preparation for this Court’s resolution.
have the same effects as DOMA on some of the Petitioners, the District Court rejected BLAG’s construction of the statute. See Pet. App. 20a-24a. And in any event, BLAG’s statutory argument would not prevent the constitutionality of DOMA from being squarely presented in this case, due to the large number of Petitioners disadvantaged by DOMA in other ways.

31
Third, as described above, the court below also engaged in the most thorough review to date of every conceivable rationale put forth in support of DOMA – whether advanced at the time of enactment in 1996 by Congress or as developed post hoc by BLAG in the current plethora of cases challenging DOMA. The district court articulated each and every such asserted rationale and analyzed each and every argument put forth in support of, and opposition to, those justifications. Id. at 86a-117a. It concluded that there is no rational justification for the federal government not to recognize valid state marriage, just because the married couple is a same-sex couple. Again, as a result, this Court could not have a more complete record to assess the merits of the justifications asserted in defense of DOMA.
The lack of any rational explanation for DOMA leads to the conclusion that Congress intended DOMA to do exactly what Congress said it intended to do – to reflect “moral disapproval of homosexuality.” H. Rep. No. 104-664 at 15-16, reprinted in 1996 U.S.C.C.A.N. at 2919-20. This purpose is clear on the face of the House Report and the Congressional Record. It is also the only explanation for DOMA that makes any sense. Whether animated by moral disapproval toward gay men and lesbians, “insensitivity,” or an instinctive reaction against those who “appear[ed] to be different,” such impermissible prejudices are not a valid purpose for a law. See Board of Trustees of Ala. State Univ. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J. and O’Connor, J., concurring). Congress enacted a statute whose object was to

32
subject gay men and lesbians to different, and lessfavorable treatment, but “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); Cleburne, 473 U.S. at 448. A “punitive discrimination based on status” is “impermissible under the Equal Protection Clause.” Plyler, 457 U.S. at 240 (Powell, J. concurring).
This case provides an excellent vehicle for reviewing the constitutionality of this troubling and harmful law.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari before judgment should be granted.

33

Respectfully submitted,

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave. NW, Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

Counsel for Petitioners Joanne Pedersen, et al.

August 21, 2012

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Appendix A
JOANNE PEDERSEN, et al., Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants, v. BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF
REPRESENTATIVES, Intervenor-Defendant.
CIVIL ACTION NO. 3:10-cv-1750 (VLB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
July 31, 2012, Decided
July 31, 2012, Filed
JUDGE: Hon. Vanessa L. Bryant, United States District Judge.
OPINION
MEMORANDUM OF DECISION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #60] AND DENYING INTERVENOR-DEFENDANT’S MOTION TO DISMISS [Dkt. #80]
Plaintiffs, homosexual individuals legally married to individuals of the same sex under the laws of the States of Connecticut, Vermont, and New Hampshire, bring this suit challenging Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at, 1 U.S.C. §7, (“DOMA”), as a violation of the Fifth Amendment’s guarantee of Equal Protection. Plaintiffs’ Complaint requests declaratory and injunctive relief, seeking a judgment declaring Section 3 of DOMA unconstitutional and void and an order permanently

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enjoining the federal government from administering and enforcing DOMA’s definition of “marriage” and “spouse” to exclude homosexual couples legally married under state law from receiving recognition and benefits under the plethora of federal laws which rely on DOMA’s definitions. Currently pending before the Court is a Motion for Summary Judgment [Dkt. #60] filed by the Plaintiffs asserting that they are entitled to judgment as a matter of law, along with a Motion to Dismiss [Dkt. #80] filed by the Intervenor-Defendants, the Bipartisan Legal Advisor Group of the United States House of Representatives, (“BLAG”) pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As both motions seek ultimate resolution of this matter, the Court will consider and review the motions simultaneously, addressing the fundamental question of whether or not Section 3 of DOMA can withstand the applicable level of constitutional scrutiny.
I. Factual Background
A. History of DOMA
DOMA was enacted on September 21, 1996 and signed into law by President Clinton after passing both houses of Congress with large majorities. Section 3 of DOMA, the provision which is the subject of the Plaintiffs’ constitutional challenge, codifies the following definition of the terms “marriage” and “spouse” as a matter of federal law:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative

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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. As expressly stated in the House Judiciary Committee Report on DOMA, DOMA was drafted as “a response to a very particular development in the State of Hawaii,” where the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers” was poised to achieve “its greatest breakthrough.” H.R. Rep. No. 104-664, at 24 (1996), reprinted in 1996 U.S.C.C.A.N. 2905-23 (hereinafter the “House Report” or “Report”).
The “breakthrough” alluded to in the Report was the Hawaii Supreme Court’s ruling in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which allowed for the possibility that a Hawaii Revised Statute, Haw. Rev. Stat. §572-1 (1985), which set forth the “[r]equisites of valid marriage contract” and limited state-sanctioned marriages to relationships “between a man and a woman” would be struck down as unconstitutional in violation of the Equal Protection clause of the Hawaii Constitution. The Hawaii Supreme Court held that “on its face and […] as applied, HRS §572-1 denies same-sex couples access to the marital status and its concomitant rights and benefits.” Baehr, 74 Haw. at 564. The Baehr Court further recognized “sex” as a suspect category for purposes of Equal Protection analysis

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under the Equal Protection Clause of the Hawaii Constitution, mandating satisfaction of strict scrutiny analysis, the most rigorous form of constitutional inquiry, in order to withstand challenge to its constitutionality under the Hawaii Constitution. Id. at 580. Concerned by this apparent willingness by judges in Hawaii “to foist the newlycoined institution of homosexual ‘marriage’ upon an unwilling Hawaiian public,” and the “possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit,” Congress, through DOMA, endeavored to enact a federal definition of marriage, ensuring that for purposes of federal regulations and laws, marital benefits would be conferred only upon heterosexual married couples. House Report at 6.
The impact of DOMA’s definition of marriage is vast, estimated to affect at least 1,138 federal laws and regulations1 and to deprive an estimated 100,000 legally married same-sex couples of the benefits afforded to married couples under such federal laws and regulations.2 Congress was cognizant of DOMA’s expansive scope, noting that the terms “marriage” and “spouse” appear hundreds
1 David B. Cruz, Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, 46 Harv. C.R.-C.L. L. Rev. 51, 74, n. 119 (2011) (citing U.S. Gov’t Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), available at http://www.gao.gov/new. items/d04353r.pdf.
2 See Mass. v. U.S. Dep’t. of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).

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of times in the spectrum of federal laws and regulations. See House Report at 10. Nevertheless, “the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F.Supp.2d 374, 379 (D. Mass 2010). “Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA.” Massachusetts v. United States Dep’t of Health and Human Services, 682 F.3d 1, 13 (1st Cir. 2012). During this brief hearing, “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.” Gill, 699 F.Supp.2d at 379.
Though the Plaintiffs in the current case have been denied benefits under only five federal statutes and regulatory schemes, the Court recognizes that this list represents merely a brief sampling of the myriad federal laws and regulations impacted by DOMA and the Court finds the Plaintiffs’ circumstances to be illustrative of the broad breadth of DOMA’s reach. Specifically, Plaintiffs’ marital statuses were denied recognition under the Family and Medical Leave Act (“FMLA”), the Federal Employees Health Benefits Program (“FEHB”), the Internal Revenue Code, the Social Security Act’s “One-Time-Lump-Sum Death Benefit,” the Qualified Preretirement Survivor Annuity (“QPSA”), and the New Hampshire Retirement System’s contribution to Medicare Insurance.

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“The FEHB is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members.” See Gill, 699 F.Supp.2d at 380 (citing 5 U.S.C. §8901 et seq.). The FEHB 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 the program.” Id. The statutory purpose of the FEHB is to “protect federal employees against the high and unpredictable costs of medical care and to assure that federal employee health benefits are equivalent to those available in the private sector so that the federal government can compete in the recruitment and retention of competent personnel.” Nat’l Federation of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9, 220 U.S. App. D.C. 89 (D.D.C. 1981) (citing S.Rep.No.468, 86th Cong., 1st Sess. 1-2 (1959); H.R.Rep.No. 957, 86th Cong., 1st Sess. 1-2 (1959)). The FEHB is administered by the Office of Personnel Management (“OPM”), which prescribes the regulations governing enrollment eligibility and dates of coverage provided to “employees, annuitants, members of their families, and former spouses.” Id. (citing 5 U.S.C. §8913). Under these regulations, those eligible for coverage may elect to enroll for individual coverage, or for both individual and family coverage. Id. (citing 5 U.S.C. §§ 8905, 8906). Coverage for family members under the FEHB is limited to “the spouse of an employee or annuitant [or] an unmarried dependent

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child under 22 years of age.” Id. (citing 5 U.S.C. §8901(5).
The FMLA was enacted to further public policy, specifically “to balance the demands of the workplace with the needs of families” by “entitl[ing] employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. §2601(b)(1), (2).3 To accomplish these goals, the FMLA entitles eligible employees to take up to twelve work-weeks of unpaid leave during any twelvemonth period. 29 U.S.C. §2612(a)(1). The regulations promulgated by the Department of Labor to implement the FMLA define the term “spouse” for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of
3 The entire statutory purpose of the FMLA is: “(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.” 29 U.S.C. §2601 (b).

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marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. §2654; 29 C.F.R. 825.122. The definition of “spouse” in Section 3 of DOMA, however, supplants the Department of Labor’s regulation’s instruction to look to the applicable State law for purposes of analyzing spousal coverage. Thus, for purposes of FMLA coverage, leave to care for a spouse suffering from a serious health condition is available only to members of opposite-sex marriages. 1 U.S.C. § 7.
The Social Security Act was created “as a broad program of social insurance, on which working people could rely to provide for themselves and their dependents in old age.” Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976). Further, 42 U.S.C. 301 provides that the purpose of grants for old-age assistance is to enable each state “to furnish financial assistance to aged needy individuals.” The Social Security Act “provides certain benefits to the surviving spouse of a deceased wage earner,” including the Lump-Sum Death Benefit. Gill, 699 F.Supp.2d at 382. The Lump-Sum Death Benefit provides that the surviving spouse of “an individual who had adequate lifetime earnings from employment or self-employment” is eligible for “the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.” Id. (citing 42 U.S.C. §§402(i), 413(a), 414(a), (b)).
Defined-benefit pension plans are subject to both the Employment Retirement Income Security Act (“ERISA”) and the Internal Revenue Code which

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impose a variety of obligations and requirements with which such pension plans must comply. See e.g. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 203 (2d Cir. 2007) (acknowledging that definedbenefit pension plans are subject to both ERISA and the Internal Revenue Code). One such requirement imposed by both ERISA and the Internal Revenue Code mandates that defined-benefit pension plans provide a Qualified Preretirement Survivor Annuity (“QPSA”). 29 U.S.C. §1055(a)(2). This requirement was imposed “in order to ensure a stream of income to surviving spouses.” Boggs v. Boggs, 520 U.S. 833, 843, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997). Another such requirement provides that pension plans which elect to provide a medical cost subsidy as a benefit to its retirees may only extend this benefit to the retired employees, their spouses, and their dependents. 26 U.S.C. §420(a), (b)(3), (c)(1), (e)(1)(A), and (e)(1)(C).
B. History of the Legalization of Gay Marriage in Connecticut, Vermont, and New Hampshire
1. Same-Sex Marriage in Connecticut
In 2005, the Connecticut legislature passed Public Acts 2005, No.05-10, codified at Conn. Gen. Stat. §§46b-38aa et seq., establishing the “right of same sex partners to enter into civil unions and conferred on such unions all the rights and privileges that are granted to spouses in marriage.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 14344, 957 A.2d 407 (2008) (citing Conn. Gen. Stat. §46b-38nn). “Under the civil union law, however, ‘marriage’ [wa]s defined as ‘the union of one man and

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one woman.’” Id. (quoting Conn. Gen. Stat. § 46b38nn).
On January 31, 2007, the Co-Chairmen of the Joint House and Senate Judiciary Committee of the Connecticut General Assembly, State Senator Andrew McDonald and Representative Michael Lawlor introduced a bill affording same-sex couples full marriage rights. See Raised H.B. No.7395. The proposed bill indicated that the Connecticut General Assembly had found that “(1) [t]he best interests of a child are promoted by having persons in the child’s life who manifest a deep concern for the child’s growth and development; (2) [t]he best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and (3) [t]he best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.” Id. The bill successfully passed the judiciary committee by a vote of 27-15 on April 12, 2007 but was never submitted to the full House or Senate. Id.
In the meantime on October 28, 2008, the Connecticut Supreme Court held that laws restricting civil marriage to heterosexual couples violated same-sex couples’ state constitution equal protection rights and that sexual orientation should be considered a quasi-suspect class. See Kerrigan, 289 Conn. at 260.
After the Kerrigan decision, the Connecticut legislature proposed a second bill affording same-sex

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couples full marriage rights and repealing the civil union law. See Raised H.B. No. 899. On April 22, 2009, both the Senate and the House voted in favor of Raised H.B. No. 899, “An Act Implementing the Guarantee of Equal Protection Under the Constitution of the State for Same Sex Couples,” and Republican Governor Rell signed the law the next day. Id. The 2009 bill contained the same Connecticut General Assembly findings as provided in the 2007 Raised Bill with respect to the best interests of the children. See Public Act No.09-13.
2. Same-Sex Marriage in Vermont
On December 20, 1999, the Vermont Supreme Court held that same-sex couples are entitled under the Vermont constitution to the “same benefits and protections afforded by Vermont law to married opposite-sex couples.” See Baker v. State, 170 Vt. 194, 224, 744 A.2d 864 (1999). In response, the Vermont legislature passed H.B. 847 et seq. which established the right of same-sex partners to enter into civil unions. On February 9, 2007, the Vermont legislature introduced bill H272 which established civil marriage for same-sex couples. On April 1, 2009, the Vermont Judiciary Committee passed the bill. On April 3, 2009, the Vermont House passed the bill and then on April 6, 2009, the Vermont Senate approved the amendments the House had made to the proposed bill. The amended bill was then vetoed by Vermont’s governor the following day. On April 7, 2009, the veto was overridden by an overwhelming vote of the Senate and the law went into effect September 1, 2009. See Human Rights Commission,

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http://hrc.vermont.gov/Same-sex%20Marriage (last visited July 27, 2012). The stated purpose of the act was to “recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.” Vt. Stat. Ann. tit. 15, § 8 (LexisNexis through 2011 session).
3. Same-Sex Marriage in New Hampshire
On April 4 and 26, 2007, the New Hampshire House and Senate respectively passed bill H.B. 437, establishing same-sex civil unions which was signed into law on May 31, 2007. 2007-2 N.H.Rev.Stat. Ann. Adv. Legis. Serv. 54 (LexisNexis). On March 18, 2009, the New Hampshire legislature voted on a bill H.B. 436 establishing civil marriage for same-sex couples. An amended version of the bill was passed in both the Vermont Senate and the House in May 2009 and signed into law on June 3, 2009. See N.H.Rev.Stat. Ann. § 457:1 (LexisNexis through chapter 9 of 2012 session); Abby Goodnough, New Hampshire Legalizes Same-Sex Marriage, N.Y. TIMES, June 3, 2009, available at http://www.nytimes.com/2009/06/04/us/04marriage.h tml.
C. Plaintiffs’ Factual Backgrounds
The pertinent facts are undisputed. Plaintiffs are gay men or lesbians who legally married a person of the same sex under the laws of the States of Connecticut, Vermont and New Hampshire and have applied and been denied federal marital benefits or sought to file federal income tax returns based on

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their married status.4 [Dkt. #61, Pl. Local Rule 56(a)1 Statement, ¶¶1-3].
Plaintiffs Joanne Pedersen (“Pedersen”) and Ann Meitzen (“Meitzen”) have been validly married under Connecticut law since December 22, 2008 and have been a committed couple for over twelve years. Id. at ¶4. Pedersen is a retired civilian employee of the Department of the Navy, Office of Naval Intelligence, and is enrolled in the Federal Employees Health Benefits Program (“FEHB”). Id. at ¶5. Pedersen contacted FEHB and was told that her wife could not be added to her insurance plan. On November 8, 2010, during FEHB’s open enrollment period, Pedersen used the online option to change her health insurance from “Self-Only” to “Self and Family” and was informed that the system could not process the request and was instructed to call FEHB. Id. at ¶¶67. Pedersen called the number provided on the website and was informed that her wife was not eligible as her spouse because she is of the same sex. Id. at ¶8. Pedersen’s wife, Meitzen, struggles with a chronic lung condition affecting her ability to work and would prefer to retire from full-time employment but is unable to due to the health insurance costs she must pay in light of the fact that she has been denied
4 BLAG has contested the standing of those Plaintiffs who sought to file federal income tax returns based on their married status arguing that the IRS code bars joint tax filing by samesex couples even absent DOMA. The facts related to those “Tax Plaintiffs” are not in dispute. Instead, the parties solely dispute whether these Plaintiffs have standing as a matter of law.

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access to Pedersen’s FEHB health insurance benefits. Id. at ¶¶10-11.
Plaintiffs Gerald V. Passaro II (“Passaro”) and Thomas Buckholz (“Buckholz”) were validly married under Connecticut law from November 26, 2008 until Buckholz’s death on January 7, 2009. They had been a committed couple for over 13 years. Id. at ¶¶13-14. Buckholz was a chemist at the Bayer Corporation (“Bayer”) for more than 20 years and was fully vested in Bayer’s defined benefit pension plan under which Passaro was his named beneficiary. Bayer denied Passaro’s request to provide him with benefits under the pension plan. Id. at ¶16. Passaro also applied for the Social Security lump-sum benefit available to surviving spouses. Id. at ¶18. The Social Security Administration (“SSA”) denied his claim and he was informed by SSA that his “marriage d[id] not meet the requirements under Federal law for payment of Social Security Lump Sum Death benefits.” Id. at ¶19.
Plaintiffs Raquel Ardin (“Ardin”) and Lynda DeForge (“DeForge”) have been validly married under Vermont law since September 7, 2009 and have been a committed couple for over thirty years. Id. at ¶20. DeForge has been a United States Postal Service employee for 26 years and is an eligible employee under the terms of Title I of the Family Medical Leave Act (“FMLA”). Id. at ¶21. Ardin also worked for the United States Postal Service for 25 years before taking disability retirement in 2005 for a neck injury sustained during her service abroad for the United States Navy. Id. at ¶¶22-23. DeForge is

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required to be with Ardin one day every three months to care for her during her regular treatments for her neck injury. DeForge applied for FMLA leave for one day every three months to care for her wife during these treatments. Id. at ¶¶25-26. The United States Postal Service denied DeForge’s request for FMLA leave and instead DeForge has taken vacation time to provide such care for her wife. Id. at ¶¶27-28. DeForge has also taken an additional 64 hours of vacation time to care for her wife following two surgeries in which she would have preferred to have taken this time as unpaid leave under the FMLA. Id. at ¶¶29. Both DeForge and Ardin are enrolled in the FEHB Program under a “Self-Only” plan. During open enrollment, DeForge applied to have Ardin added to her “Self and Family” plan under the FEHB program and was informed that “[s]ame sex spouses are not considered eligible family members under FEHB.” Id. at ¶¶32-35. DeForge and Ardin would prefer to have one “Self and Family” plan in order to take advantage of the cost savings of a single plan. Id. at ¶36.
Plaintiffs Janet Geller (“Geller”) and Joanna Marquis (“Marquis”) have been validly married under New Hampshire law since May 3, 2010 and have been a committed couple for over thirty years. Id. at ¶38. Marquis is a retired school teacher having taught in New Hampshire public schools for over 30 years. Geller is also a retired school teacher having taught in New Hampshire public schools for over 25 years. Id. at ¶¶39-40. Both receive a pension through the New Hampshire Retirement System (“NHRS”). Id. at ¶41. Because Marquis has over 30 years of

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service her NHRS benefits include a medical cost supplement that helps pay for her Medicare Part B supplemental insurance and which also provides a supplement for her spouse. Marquis applied for the cost supplement for her wife Geller and was denied the benefit which would have resulted in $375.56 in savings per month. Id. at ¶¶42-45.
Plaintiffs Suzanne Artis and Geraldine Artis have been validly married under Connecticut law since July 11, 2009, have been a committed couple for over seventeen years, and are raising three children together. Id. at ¶¶47-48. For the year 2009, Suzanne Artis filed a federal income tax return as Head of Household and Geraldine Artis filed a federal income tax return as Single. Id. at ¶49. Both Suzanne and Geraldine Artis submitted a first amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $1,465, which is the difference between what they each paid as a Head of Household filer and as a Single filer, respectively, and what they would have paid if they had been permitted to file with the status of Married Filing Jointly. The IRS denied the Artis’s 2009 refund request because “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id. at ¶¶50-52.
Plaintiffs Bradley Kleinerman (“Kleinerman”) and James Gehre (“Gehre”) have been validly married under Connecticut law since March 6, 2009 and have three children whom they adopted jointly. Id. at ¶¶55-56. For the year 2009, Kleinerman filed a federal income tax return as Head of Household.

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Gehre, a stay at home parent did not have sufficient income to file a federal income tax return. Id. at ¶57. Kleinerman submitted a first and then second amended federal income tax return for the year 2009 on IRS Form 1040X requesting a refund of $2,085 which is the difference between what he paid as a Head of Household filer and what he would have paid if he had been permitted to file with the status of Married Filing Jointly. Id. at ¶¶58-59. The IRS failed to act on the second amended return within 6 months and therefore his request has been deemed denied by the IRS. Id. at ¶60. Kleinerman and Gehre were also informed that they would have to fill out two United States customs forms upon returning to the United States from an international trip. Id. at ¶62.
Plaintiffs Damon Savoy (“Savoy”) and John Weiss (“Weiss”) have been validly married under Connecticut law since October 9, 2010, have been a committed couple for twelve years, and are raising three adopted children together. Id. at ¶¶64,66. Savoy has been a government attorney for the Office of the Comptroller of the Currency (“OCC”) since 1992 and is enrolled in the FEHB program. Id. at ¶65. Weiss gave up his career to focus on raising their children full time. After Weiss’s COBRA health coverage terminated, he had to apply for and purchase health care coverage on the private insurance market. Id. at ¶¶66-67. Savoy applied to have his husband added to his existing health plan under the FHEB Program and his application was denied. Id. at ¶¶69-70.

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II. Standards of Review
A. Motion to Dismiss
“‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations and internal quotations omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ “ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption

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of truth.’” Id. (quoting Iqbal, 129 S.Ct. at 1949-50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotations omitted).
B. Motion for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id., (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the record that could reasonably support a jury’s verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d

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Cir.2006) (internal quotation marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible. At the summary judgment stage of the proceeding, Plaintiffs are required to present admissible evidence in support of their allegations; allegations alone, without evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.3:03cv481, 2004 U.S. Dist. LEXIS 22112, 2004 WL 2472280, at *1 (D.Conn. Oct. 20, 2004) (internal quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F. Supp. 2d 28, 2011 WL 4396704 at *6 (D. Conn. 2011). Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
III. Discussion
A. Standing of those Plaintiffs Who Were Prevented from Filing Joint Tax Returns
BLAG argues that those Plaintiffs who claim that DOMA prohibited them from jointly filing their taxes lack standing in this case. See [Dkt. #82, BLAG Obj. to Summary Judgment, p. 34-37]. BLAG argues that the “statute governing the joint filing of married persons, 26 U.S.C. §6013, does not on its own extend

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to same-sex couples.” Id. at 34. 26 U.S.C. §6013 provides in relevant part that a “husband and wife may make a single return jointly of income taxes...” 26 U.S.C. §6013(a). BLAG argues that these Plaintiffs lack standing “because the joint filing statute itself offers an independent ground to deny them joint, married filing status.” [Dkt. #82, p. 35]. BLAG argues that even if DOMA were struck down, these Plaintiffs would not qualify as “spouses” nor would their relationships qualify as “marriages” within the meaning of the IRS code. Id. at 37.
“Article III, § 2 of the United States Constitution restricts federal courts to deciding ‘Cases’ and ‘Controversies’ and thus imposes what the Supreme Court has described as the ‘irreducible constitutional minimum of standing,’ – injury-in-fact, causation, and redressability.” Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Lujan holds that a “litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). “In the absence of standing, a court lacks the requisite subject matter jurisdiction over the case.” HealthNow New York Inc. v. New York, 448 Fed. Appx. 79, 81 (2d Cir. 2011).
Plaintiffs argue that BLAG’s interpretation of the IRS code is unavailing because gendered terms in

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federal statutes are presumptively gender-neutral. U.S.C. Title 1, Section 1 states in relevant part that “when determining the meaning of any Act of Congress, unless the context indicates otherwise ... [the] words importing the masculine gender include the feminine as well.” 1 U.S.C. §1. Moreover, the Internal Revenue Code itself states that it cross references 1 U.S.C. §1 for the other definitions including “masculine as including feminine.” See 26 U.S.C. §7701 (p) (1) (3). The gender neutral equivalent of the terms husband and wife is spouse. Therefore it is clear that even absent DOMA the use of the gendered terms of “husband” and “wife” in Section 6013 would not bar Plaintiffs from joint filing on the basis of the IRS code’s adoption of Section 1’s gender-neutral directive.
In addition, Plaintiffs argue that the IRS has “never adopted the narrow statutory construction the House now urges. To the contrary, the IRS has repeatedly stated that DOMA – and not Code Section 6013 – is the reason that same-sex couples may not file joint tax returns.” [Dkt. #95, Pl. Obj. to Motion to Dismiss, p. 36]. Moreover, Plaintiffs have provided evidence that prior to the enactment of DOMA in 1996 the IRS’s practice was to defer to state law to determine marital status. See Boyter v. Comm’r, 668 F.2d 1382. 1385 (4th Cir. 1981) (“[U]nder the Internal Revenue Code a federal court is bound by state law rather than federal law when attempting to construe marital status.”). The 1995 version of IRS Publication 17, Cat. No. 10311G, “Your Federal Income Tax – For Individuals” for use in preparing 1995 returns stated that “[y]our filing status is a

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category that identifies you based on your marital and family situation. State law governs whether you are married, divorced, or legally separated under a decree of divorce or separate maintenance.” [Dkt. #100, attach 10, Exhibit J].
Plaintiffs offer unequivocal evidence that DOMA was the reason the IRS no longer deferred to state law and instead denied same-sex couples who were validly married under state law the ability to file joint tax returns. Indeed, Plaintiffs have submitted a letter from the IRS itself indicating that DOMA was the reason why they were denied joint married filing status. The IRS sent a Determination Letter to Plaintiff Suzanne Artis dated December 31, 2009 stating that “[a]ccording to Public Law 104-199, Defense of Marriage Act (DOMA) states that a legal union between one man and one woman is considered marriage. And because same sex couples cannot, under DOMA, constitute a marriage, they cannot file a Married Filing Joint tax return.” [Dkt. #100, attach 8, Exhibit H]. Further, Plaintiffs have submitted an IRS information letter dated December 31, 2001, stating that “[b]ecause parties to a Vermont civil union must be of the same sex, a Vermont civil union cannot, under DOMA, be a marriage for purposes of the Internal Revenue Code. Therefore, parties to a Vermont civil union cannot be considered married for purposes of §1 or as husband and wife for purposes of §6013.” [Dkt. #100, attach 11, Exhibit K]. Lastly, in addition, the 2009 version of IRS publication 17, “Your Federal Income Tax – For Individuals” for use in preparing 2009 returns stated that “[i]n general, your filing status depends

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on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” [Dkt. #100, attach 9, Exhibit I].
The record clearly establishes that those Plaintiffs referred to as the “Tax Plaintiffs” have satisfied their burden of proving that DOMA was, and but for adjudication of this issue will continue to be, the cause of their alleged injury. BLAG’s arguments that Section 6013 and not DOMA deprives the “Tax Plaintiffs” of the tax treatment to which they assert entitlement is unpersuasive in light of the IRS’s clear and unequivocal statement that DOMA was the basis for its denial of joint married filing status. The Court therefore finds that the “Tax Plaintiffs” have standing to pursue their claims in this Court.
B. Baker v. Nelson Does Not Mandate Dismissal of Plaintiffs’ Case
BLAG argues that the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), forty (40) years ago is binding precedent supporting the constitutionality of DOMA and that Baker mandates dismissal of Plaintiffs’ case. [Dkt. #81, BLAG Motion to Dismiss, p.14.]. The Court rejects BLAG’s argument for two reasons. First, Baker has limited precedential value. In Baker, the Appellants challenged a Minnesota statute which denied marriage licenses to same-sex couples on due process and equal protection grounds arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and

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that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Baker v. Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971). The Minnesota Supreme Court affirmed that the statute “does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited” and held that the “equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry.” Id. at 312-313. The Appellants then exercised their right of appeal to the United States Supreme Court pursuant to 28 U.S.C. § 1257 (2) (repealed 1988) arguing that the Minnesota marriage statute violated due process and equal protection rights guaranteed by the Fourteenth Amendment. The Supreme Court summarily dismissed the appeal “for want of substantial federal question.” Baker v. Nelson, 409 U.S. at 810.
The Second Circuit has eschewed the application of Baker advocated by BLAG. “The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to the ‘precise issues presented and necessarily decided by’ the dismissal.” Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d Cir. 2010). The Supreme Court has repeatedly cautioned that the precedential import of a summary dismissal is extremely narrow. In other words, a “summary affirmance [or dismissal] is a ‘rather slender reed’ on which to rest future decisions.” Morse v. Republican Party, 517 U.S. 186, 203 n.21, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1996) (internal citation omitted). Consequently, any “[q]uestions which ‘merely lurk in

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the record,’... are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elec. v. Socialist Workers, 440 U.S. 173, 182, 99 S. Ct. 983, 59 L. Ed. 2d 230 (1979).
Second, the instant case does not present the same questions presented in Baker. Baker presented a state constitutional question while this case presents a United States constitutional question. Plaintiffs have challenged a federal law which defines marriage for federal purposes, impacting entitlement to federal benefits and obligations under federal law. DOMA abridges the states’ right to confer marital status on residents, but it does not wholly deprive states of the right to do so. DOMA impacts federal benefits and obligations, but does not prohibit a state from authorizing or forbidding samesex marriage, as was the case in Baker.
In addition, although the Plaintiffs argue that DOMA impacts a fundamental right, the issue of whether there is a constitutional right to same-sex marriage is not present in the instant matter as all Plaintiffs are validly married under state law. Consequently, Baker, which addressed whether there was a constitutional right to same-sex marriage, is clearly unrelated to the question presented in the current case and is therefore not binding on this Court. Accord, e.g., Windsor v. United States, 833 F.Supp. 2d 394, 399-400 (S.D.N.Y. 2012) (“[A]fter comparing the issues in Baker and those in the instant case, the Court does not believe that Baker ‘necessarily decided’ the question of whether DOMA violates the Fifth

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Amendment’s Equal Protection Clause.”); Golinski v. U.S. Office of Personnel Management, 824 F.Supp.2d 968, 983 n.5 (N.D. Cal. 2012) (finding Baker to be irrelevant to Plaintiffs’ equal protection challenge to DOMA); Massachusetts, 682 F.3d at 2 (holding on challenge to DOMA that “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.”); Smelt v. County of Orange, 374 F.Supp. 2d 861, 873 (C.D. Cal. 2005) (finding that DOMA reflects “interests and its own legislative history” that “were not before the Minnesota Supreme Court or the U.S. Supreme Court at the time of Baker”); In re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (finding that Baker does not apply because DOMA deals with “subsequentlyenacted federal legislation with its own Congressional history that concerns exclusively federal benefits”). Having concluded that Baker is not dispositive of the issues presented in this case, the Court will consider the parties’ arguments as to whether DOMA violates the promise of equal protection.
C. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (quoting Plyler v. Doe, 457 U.S.

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202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). Though the Fifth Amendment makes no explicit mention of equal protection under the laws, the Supreme Court has recognized that since 1975, “[t]his 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, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (internal quotations omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975)); See also Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
The guarantee of equal protection of the laws, well-established to be incorporated into the Fifth Amendment, “is a pledge of the protection of equal laws.” See Romer v. Evans, 517 U.S. 620, 633-34, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (internal quotations omitted) (quoting Skinner v. Oklahoma ex. Rel. Williamson, 316 U.S. 535, 541 (1942)). When considering a state constitutional amendment prohibiting any administrative, legislative or judicial action designed to protect homosexuals from discrimination, the United States Supreme Court reminded us that our “Constitution ‘neither knows nor tolerates classes among citizens.’” Romer, 517 U.S. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)).

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The need to adhere to these directives of equal protection, however, must be balanced against “the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citing Pers. Admin. of Mass. v. Feeney, 442 U.S. 256, 271-72, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). “A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
“[C]ourts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Golinski, 824 F.Supp.2d at 981 (citing Romer, 517 U.S. at 631). Conversely, “if a law neither burdens a fundamental right nor targets a suspect class,” the legislative classification will withstand constitutional scrutiny “so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631 (citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)). However, even under rational basis review the constitutional scrutiny is not “minimalist,” rather the Court must consider the “case-specific nature of the discrepant treatment, the

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burden imposed, and the infirmities of the justifications offered.” Massachusetts, 682 F.3d at 6.
At the outset, the Court must determine the appropriate level of scrutiny to apply. Plaintiffs argue that DOMA should be subject to heightened judicial review because DOMA treats individuals differently on the basis of their sexual orientation by denying certain benefits to legally married same-sex couples that are available to legally married opposite-sex couples.
D. Suspect Class
The Supreme Court has acknowledged that it “would not be faithful” to its obligations under the Constitution to apply “so deferential a standard to every classification” as the equal protection clause was intended as a restriction on legislative action “inconsistent with elemental constitutional premises.” Plyler, 457 U.S. at 216. Consequently, a greater scrutiny is applied to classifications that disadvantage a suspect class or that impinge upon the exercise of a fundamental right. Id. Such classifications are therefore “treated as presumptively invidious” and must be “precisely tailored to serve a compelling government interest” to pass constitutional muster. Id. In addition, classifications that disadvantage a quasi-suspect class are also subject to a form of heightened scrutiny and must be “substantially related to a legitimate state interest” to withstand so-called intermediate scrutiny. See Mills v. Habluetzel, 456 U.S. 91, 99, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982).

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Plaintiffs argue that heightened scrutiny is appropriate in the instant case on two bases: first Plaintiffs argue that sexual orientation should be considered a suspect or quasi-suspect class and second that DOMA “disparately burdens the fundamental interest in maintaining existing family relationships.” See [Dkt. #63, Pl. Motion for Summary Judgment, p.15-30]. Since Plaintiffs’ first argument is the narrower ground for assessing the appropriateness of heightened scrutiny the Court will consider this argument first as “courts generally decide constitutional questions on the narrowest ground available.” Perry v. Brown, 671 F.3d 1052, 1076 (9th Cir. 2012) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995)).
The Supreme Court has considered the following factors in assessing whether a particular classification should be considered either a suspect or quasi-suspect class: “(1) the history of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members’ control; and (4) the political power of the subject class.” Golinski, 824 F.Supp.2d at 983 (citation omitted).
“No single factor for determining elevated scrutiny is dispositive.” Id. See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 321, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (Marshall, J. dissenting)

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(acknowledging the problems of “deciding cases based on factors not encompassed by the applicable standards” as “rudderless” and “unpredictable” and the related danger that “relevant factors will be misapplied or ignored.” “All interests are not ‘fundamental’ and all classes not ‘suspect’ are not the same; and it is time for the Court to drop the pretense that, for purposes of the Equal Protection Clause, they are.”). The presence of any one of these factors marks such classification as “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14. “Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal.” Id. Although no one factor is dispositive, Supreme Court precedent has placed greater emphasis on the first two factors. See Golinski, 824 F.Supp.2d at 983 (citing Kerrigan, 289 Conn. at 167-68).
1. Federal Precedent Regarding Suspect Classification
BLAG contends that sexual orientation has never been viewed as a suspect or quasi-suspect class by federal courts and argues that it would be a “radical step” to disregard “consistent, substantial and persuasive authority.” See [Dkt. #82, p.8]. In support of this contention, BLAG points to the Supreme Court’s past application of rational basis review to

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classifications based on sexual orientation in Romer and Lawrence and emphasizes that eleven federal circuits have previously held that homosexuals are not a suspect class. Id. at 7 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Lofton v. Sec. of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818 & n.1 (11th Cir. 2004); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989)).
The jurisprudence of the appropriate classification is inchoate. While BLAG’s asserts that there is “consistent, substantial and persuasive authority” supporting the conclusion that sexual orientation is not a suspect or quasi-suspect class, many circuits, including ours, have not had occasion to squarely address it. First, the question of whether sexual orientation is a suspect class is an open question in the Second Circuit and therefore a matter of first impression before this Court. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (noting that the court need not decided whether homosexuals were a suspect class in the Second Circuit since the “plaintiffs asserted that they were not seeking any more onerous standard than the rational basis test” on appeal); see also Windsor, 833 F.Supp.2d at 402 (finding DOMA violated equal protection under rational basis review and noting that the court “need not decided today whether homosexuals are a suspect class.”).
Second, the Supreme Court has not yet ruled on the appropriate level of scrutiny for classifications

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based on sexual orientation. In both Romer and Lawrence, the Supreme Court only assessed whether the subject legislation failed rational basis review and neither opinion addressed the issue of suspect class. See Kerrigan, 289 Conn. at 238-39 (rejecting the contention that the United States Supreme Court in Romer “implicitly concluded that gay persons do not comprise a suspect or quasi-suspect class ... Because the court indicated that the Colorado constitutional amendment could not withstand even rational basis review, the lowest level of judicial scrutiny, the court had no reason to decide whether heightened review was appropriate.”). Indeed, the word “suspect” does not appear once in the Supreme Court’s decision in Lawrence and only the dissent in Romer mentions suspect class in a footnote noting that respondents elected to not appeal to the Supreme Court of Colorado the trial court’s rejection of their argument that homosexuals constitute a suspect or quasi-suspect class. Romer, 517 U.S. at 640 n.1; Lawrence v. Texas, 539 U.S. 558, 589 n.1, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). In view of this, Romer and Lawrence are not dispositive as to the level of scrutiny that should be afforded to classifications based on sexual orientation.
Lastly, many of the cases relied on by BLAG in turn rely on the reasoning of Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) which was subsequently overruled in Lawrence or gave cursory consideration to the suspect class analysis. Thus these cases lack both contemporary and explicative analysis of the issue. As the Golinski court in the Northern District of

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California noted “[w]hen the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Golinski, 824 F.Supp.2d at 983 (internal quotation marks and citation omitted). As the Golinski court explained, the Ninth Circuit’s holding in High Tech Gays that homosexuals could not constitute a suspect or quasi-suspect class was entirely predicated on the Supreme Court’s reasoning in Bowers upholding the criminalization of private consensual homosexual conduct. Id. at 983984; High Tech Gays, 895 F.2d at 571 (“because homosexual conduct can ... be criminalized, homosexuals cannot constitute a suspect or quasisuspect class entitled to greater than rational basis review for equal protection purposes.”). However, this very reasoning was squarely rejected in Lawrence in which the Supreme Court held that private consensual homosexual conduct could not be criminalized because such practices were safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Like the Ninth Circuit, the vast majority of the federal circuit cases addressing this issue “either relied on Bowers explicitly or relied on cases that were predicated on Bowers.” Kerrigan, 289 Conn. at 231 n.64 (collecting cases). Consequently, the Supreme Court’s holding in Lawrence “remov[ed] the precedential underpinnings of the federal case law supporting the defendants’

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claim that gay persons are not a [suspect or] quasisuspect class.” Id. at 233.
Furthermore as the Department of Justice (“DOJ”) in their response to the Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss note, a number of the circuit cases relied on by BLAG involve challenges to military policy on homosexual conduct and are therefore distinguishable from challenges within the civilian context. See [Dkt. #98, DOJ Obj. to Motion to Dismiss and Summary Judgment, p. 10 n.2]; Cook, 528 F.3d at 45 (challenge to the military’s “Don’t Ask Don’t Tell” policy); BenShalom, 881 F.2d at 456 (challenge to Army Regulation 135-178); High Tech Gays, 895 F.2d at 565 (challenge to the Department of Defense policy of conducting expanded investigations into backgrounds of all gay and lesbian applicants for secret and top secret security clearances). Indeed, the Second Circuit has observed that “[i]n full recognition that within the military individual rights must of necessity be curtailed lest the military’s mission be impaired, courts have applied less stringent standards to constitutional challenges to military rules, regulations and procedures than they have in the civilian context” and consequently a court’s “‘review of military regulations ... is far more deferential than constitutional review of similar laws or regulations designed for civilian society.’” Able, 155 F.3d at 633 (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986)); see also Rostker v. Goldberg, 453 U.S. 57, 70, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) (acknowledging that “judicial deference to such

37a congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged”). Considering the inimitable circumstances attending military regulations and the uniquely deferential approach afforded to such regulations, whatever precedential value these cases have to the civilian context is considerably diminished.5
In view of the fact that the authority relied on by BLAG in turn relied on Bowers, which was rejected in Lawrence, and relied on analyses in the deferential military context rather than the more discretionary civilian context, the precedential import of such authority is unpersuasive, particularly given the fact that the Second Circuit has not had an opportunity to consider the matter.
5The Court notes that the First Circuit in its recent opinion, Massachusetts, 682 F.3d at 4, concluded that its prior decision in Cook v. Gates declining to create a new category of suspect classification for sexual orientation bound the panel. As discussed above, this Court questions the precedential value of Cook in light of its military context. The First Circuit in Cook deliberately “recognize[d] the unique context in which the liberty interest at stake” arose and expressly acknowledged that it was applying a uniquely deferential approach in “reviewing an exercise of Congressional judgment in the area of military affairs.” Cook, 528 F.3d at 57. Consequently, the First Circuit’s recent affirmation in Massachusetts of the appropriateness of rational basis review with respect to sexual orientation is not persuasive in light of its reliance on Cook.

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The Court is mindful of the Supreme Court’s admonition that “‘respect for the separation of powers’ should make courts reluctant to establish new suspect classes.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (quoting Cleburne, 473 U.S. at 441). The Supreme Court has to date only recognized a handful of suspect and quasi-suspect classes. See e.g., Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (race subject to strict scrutiny); Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944) (national ancestry and ethnic origin subject to strict scrutiny); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality opinion) (gender subject to intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 505-506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) (illegitimacy subject to intermediate scrutiny); cf.,e.g., Cleburne, 473 U.S. at 443 (declining to recognize mentally disadvantaged as a suspect class); Murgia, 427 U.S. at 313 (per curiam) (declining to extend strict scrutiny to the elderly); Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986) (declining to extend strict scrutiny to close relatives).
Although heedful of the command for judicial restraint, the Court recognizes that a mechanical adherence to this command would likely undermine the Court’s obligation to ensure that the equal protection clause does serve as a restriction on legislative action “inconsistent with [the] elemental constitutional premise[]” that “all persons similarly circumstanced shall be treated alike.” Plyler, 457 U.S. at 216-17 (internal quotation marks and citation

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omitted). Pursuant to this obligation, the Court must not be tempted to tie conceptions of judicial restraint to historic notions of equality. The Supreme Court has indeed remarked that “the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 669, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). In this Court’s view, this elasticity does not mean a rewriting of the Constitution, but rather a rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles. Considering the import of the elemental premise of equal protection and in light of the lack of persuasive authority as to appropriate the level of scrutiny, it is this Court’s duty to meaningfully assess in the first instance whether sexual orientation constitutes a suspect or quasi-suspect class.
2. Suspect or Quasi-suspect Class Factors
At the outset, this Court is guided by Justice Thurgood Marshall’s approach in his concurring and dissenting opinion in Cleburne, joined by Justices Brennan and Blackmun, that “[n]o single talisman can define those groups likely to be the target of

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classifications offensive to the [f]ourteenth [a]mendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.” 473 U.S. at 472-73 n. 24. Moreover, “[t]he discreteness and insularity warranting a ‘more searching judicial inquiry’ … must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, ‘a page of history is worth a volume of logic.’” Id. (citations omitted). Thus the Court’s analysis will be cognizant of social, cultural and political perspectives grounded in experience as opposed to abstract logic and an awareness that there is likely no single talisman that signals which groups are the subject of classifications offensive to the principle of equal protection.
i. History of Discrimination
The first factor courts consider is whether the class has suffered a history of discrimination. Plaintiffs argue that “[i]t is beyond dispute that ‘for

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centuries there have been powerful voices to condemn homosexual conduct as immoral’” and that “lesbians and gay men have suffered a long history of discrimination and condemnation.” [Dkt. #63, p.30] (citing Lawrence, 539 U.S. at 571). BLAG responds that it “does not dispute that homosexuals have been subject to discrimination” however BLAG questions the length of this history. This acknowledgement is emblematic of the incidents of discrimination, including annulation, negation, ostracism and isolation of the group which is the object of discrimination resulting in the broader society’s lack of knowledge and understanding of that group.
BLAG argues that the history of discrimination against homosexuals is relatively short-lived and ostensibly the product of the twentieth century which counsels against recognizing sexual orientation as a suspect or quasi-suspect class. [Dkt. #82, p.9-10]. In support of this sweeping argument, BLAG cites to a short excerpt taken from an article published by one of Plaintiff’s experts, George Chauncey, Ph.D., (“Chauncey”) and a quote from an internet interview given by Chauncey in which Chauncey notes that affirmative legislative proscriptions against homosexuals as an identity group were implemented in the twentieth century consequent to the emergence of the concept of homosexual as a distinct category of people in the nineteenth century. Id., see also [Dkt. #74, Chauncey Aff., ¶ 10].

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Chauncey elaborates in his expert affidavit6 that the formal institutionalization of discrimination against homosexual identity or status in the twentieth century was really the outgrowth of “ancient Judeo-Christian prohibitions against sodomy and ‘unnatural acts,’” which “penalized a wide range of non-procreative behavior, including many forms of what would now be called homosexual conduct.” [Dkt. #74, ¶ 10]; see also Owen Keehnen, The Case for Gay Marriage: Talking with Why Marriage? Author George Chauncey (2004), QLBTQ.com, http://www.glbtg.com/sfeatures/interviewgchauncey. html (“It’s important to note that there’s been a long history in the regulation of sexual acts of various kinds, not just homosexual acts”). In his expert affidavit, Chauncey details the long-standing roots of anti-gay discrimination describing that the “first American laws against homosexual conduct were rooted in the earliest English settlers’ understanding of the religious and secular traditions that prohibited
6BLAG broadly argues that portions of the Plaintiffs’ expert affidavits should be disregarded to the extent they contain conclusory assertions not supported by any identification of the facts upon which they are based. [Dkt. #82, p. 37-42]. To the extent that any material included in an expert affidavit does not demonstrate the inferential process and factual basis underlying the affiant’s conclusions thereby making the opinion unreliable or unhelpful, the Court has disregarded such material in line with the Second Circuit’s guidance in Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994) (“An affidavit stating the facts upon which the expert’s opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached.”) (citation omitted).

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sodomy.” [Dkt. #74, ¶¶ 17-19]. Chauncey accounts that the English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery which English courts interpreted to apply to anal intercourse between a man and woman as well as between two men. Id. at ¶18. Chauncey further explains that Colonial American statutes likewise criminalized homosexual conduct through prohibitions on sodomy or buggery noting that for example the Massachusetts Bay Colony prohibited sodomy by statute in 1641. Id. at ¶19. Consequently, the affirmative legislation of anti-gay policing that arose in the twentieth century was not reflective of an absence of prior discrimination or the emergence of a new form of discrimination as BLAG contends. Instead, the legislative framework which was constructed in the twentieth century can been seen as consistent with and reflective of the long standing moral condemnation of homosexual conduct that dates back to ancient Judeo-Christian prohibitions against sodomy.
In view of this, BLAG’s invocation of Chauncey’s conclusion that antigay discrimination is “unique and relatively short-lived” is clearly taken out of context. Chauncey explains that it was only until the twentieth century “[b]etween the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex conduct and responding to new conceptions of the homosexual as an individual and to the growing visibility of those individuals, began to classify and discriminate against certain of their citizens on the basis of their status or identity as

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homosexuals” as opposed to discrimination on the basis of homosexual conduct. Id. at ¶21 (emphasis added). In other words, what was “unique and relatively short-lived” was the fact that it was not until the twentieth century that laws that discriminated against homosexuality were for the first time conceptualized in terms of status or identity as opposed to conduct. As discussed above, laws that proscribed homosexual conduct more generally, such as anti-sodomy or buggery statutes, have undeniably long-standing roots. When viewed in this fuller context, Chauncey’s conclusion that laws discriminating against homosexual identity or status in the twentieth century were unique and short-lived is not inconsistent with a finding that homosexuals have suffered a long history of discrimination.
Further contradicting this notion is the fact that not just the conduct was labeled, but the individuals who engaged in or who appeared to have the proclivity to engage in such conduct were labeled.
Likewise the fact that the concept of homosexuality as a distinct category or class wasn’t fully recognized until the late nineteenth century is not indicative of an absence of a long history of discrimination in light of the long standing proscriptions on homosexual conduct – conduct that is central if not tantamount in some sense to identity. Moreover, the pervasiveness of the “closet” in which homosexuals purposefully hid their sexualities could very well explain why it was only in the late nineteenth century that conceptions of

45a
homosexual identity emerged as gay Americans moved into cities and began tentatively stepping out of the closet. See, e.g., Kenji Yoshino, Covering, 111 Yale L. J. 769, 784 (2002) (describing the “progress of the gay rights movement as a shift in emphasis from the demand that gays convert, to the demand that gays pass, to the demand that gays cover”); Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753 (1996) (discussing the ability of the closet as a means of oppression, isolation and invisibility) (citing Eve K. Sedgwick, The Epistemology of the Closet 129 (1990)); [Dkt. #72, Segura Aff., ¶¶ 56-64] (discussing the political and personal costs of gay and lesbians’ relative “invisibility” and decision to “pass”]; [Dkt. #74, ¶¶ 22-25] (noting that the “dramatic growth of American cities in the late nineteenth century permitted lesbian and gay men to develop a more complex and extensive collective life than was possible in small towns and rural areas.”).
In addition, the DOJ in their memorandum of law in response to Plaintiffs’ motion for summary judgment and BLAG’s motion to dismiss cogently argues that the “federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.” [Dkt. #98, p. 12]. The DOJ points to evidence of the federal government’s long-standing practice of deeming homosexuals unfit for government employment. 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

46a
(December 15, 1960) at 9 (finding that between 1947 to 1950, approximately 1,700 applicants for federal positions were denied employment because of a record of homosexuality or other sex perversion). In 1953, President Eisenhower issued Executive Order 10,450 which officially added “sexual perversion” as a ground for investigation and dismissal from federal government employment. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953).
In addition to discrimination against homosexuals in employment, the federal government categorically discriminated against homosexuals in immigration until 1990, barring all gay and lesbian noncitizens from entering the United States. See Boutilier v. INS, 387 U.S. 118, 120, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967) (concluding that the legislative history of the Immigration and Nationality Act of 1952 “indicated beyond a shadow of a doubt that Congress ended the phrase ‘psychopathic personality’ to include homosexuals.”). In addition, the federal government has also labeled homosexuals mentally ill. Id.
Broad-based repressive discrimination has existed at all levels of government. The DOJ also points to the long history of discrimination by state and local governments against gays and lesbians in (i) public employment; (ii) the denial of child custody and visitation rights; (iii) ability to associate freely; and (iv) legislative efforts including local initiatives to repeal laws that protect homosexuals from discrimination. See [Dkt. #98, p.15-19].

47a
Discrimination also permeates society as a whole and is perpetrated on a private level as well. Lastly, the DOJ emphasizes that gays and lesbians suffer from discrimination by private parties highlighting statistics which demonstrate that homosexuals continue to be among the most frequent victims of all reported hate crimes. Id. at 20 (citing H.R. Rep. 1186, at 10 (2009)).
The long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (“[W]e do agree that homosexuals have suffered a history of discrimination...”); Ben-Shalom, 881 F.3d at 465-66 (“Homosexuals have suffered a history of discrimination and still do, though possibly now in less degree.”); Golinski, 824 F.Supp. 2d at 985 (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 981-82 (N.D.Cal. 2010) (acknowledging evidence of public and private discrimination against gay men and lesbians). See also, e.g., Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985) (J. Brennan, dissenting) (“Moreover, homosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely “to

48a
reflect deep-seated prejudice rather than ... rationality”); Lawrence, 539 U.S. at 568-69 (acknowledging that the long history of laws proscribing sodomy and buggery while not directly aimed at homosexuals did “not suggest approval of homosexual conduct.”); Kerrigan, 289 Conn. at 179 (concluding that “[t]here is no question, therefore, that gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation.”).
Discrimination against homosexuals has been recognized by at least one court in this district, holding that “[w]hile social and political tolerance of homosexuality is increasing, gay men and lesbians have endured a long history of discrimination, both official and private.” Able v. United States, 968 F.Supp. 850, 854 (E.D.N.Y. 1997), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998). The Able court noted that discrimination against homosexuality began in the second half of the twelfth century and that the “‘earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages’ were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men.” Id. (quoting John Boswell, Christianity, Social Tolerance and Homosexuality, 281 (1980)). The Able court also emphasized that during the Holocaust, “Nazis persecuted homosexuals along with Jews, gypsies, and other groups, using the pink triangle as the symbol to designate homosexuality.” Id. at 852.

49a
In sum, the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.
ii. Ability to Contribute to Society
Plaintiffs argue “there can be no credible dispute about whether sexual orientation bears a relation to one’s ‘ability to perform or contribute to society.’” [Dkt. #63, p. 20]. BLAG does not outright dispute whether homosexuals have the ability to contribute to society. Instead BLAG curiously argues that since DOMA survives rational basis review this factor cannot justify application of heightened scrutiny. See [Dkt. #82, p. 11]. BLAG argues that the “Congress that enacted DOMA and the President who signed it obviously thought that the classifications drawn by DOMA were relevant and rationally related to several legitimate legislative goals. If that is the case, then DOMA survives rational basis review. If that were not the case, the DOMA would fail rational basis review, and the application of heightened scrutiny would be superfluous.” Id. This Court is at a loss to see how the merits of rational basis review has any relation or nexus to the question of whether

50a

homosexuals have the ability to contribute to society. BLAG’s argument fails to address and therefore apparently concedes that this factor is met.

Certainly the recent repeal of “Don’t Ask Don’t

Tell” and the military’s contemporaneous recognition

of the long history of valiant honorable service of

homosexual servicemen and women attests to the

fact that homosexuals have made the ultimate

contribution to society. Defense Secretary Leon

Panetta recently highlighted these contributions and

“thank[ed] gay and lesbian service members, LCGT

civilians, and their families for their dedicated

service to our country.” Leon Panetta, Secretary

Penetta Video Message for Lesbian, Gay, Bisexual,

Transgender Pride Month from the Pentagon, U.S.

Dep’t.

of

Def.

(June

15,

2012),

http://www.defense.gov/transcripts/transcript.aspx?tr

anscriptid=5062. Secretary Panetta stated that

“[b]efore the repeal of ‘Don’t Ask, Don’t Tell,’ you

faithfully served your country with professionalism

and courage. And just like your fellow service

members, you put your country before yourself...The

pursuit of equality is fundamental to the American

story. The successful repeal of ‘Don’t Ask, Don’t Tell’

proved to the Nation that just like the country we

defend, we share different backgrounds, different

values, and different beliefs – but together, we are

the greatest military force in the world.” Id.

In addition, the long-held consensus of the psychological and medical community is that “‘homosexuality per se implies no impairment in judgment, stability, reliability or general or social or

51a
vocational capabilities.’” [Dkt. #73, Peplau Aff., ¶30] (quoting 1973 Resolution of the American Psychological Association). Furthermore, Plaintiffs have highlighted that homosexuals have long and honorably served in Congress, the judiciary, and the military as well as played important roles in local communities. See [Dkt. #63, p. 20].
Again this conclusion is consistent with the majority of cases that have meaningfully considered the question. See e.g., Golinski, 824 F.Supp.2d at 986; Perry v. Schwarzenegger, 704 F.Supp.2d at 1002 (finding that “by every available metric, opposite-sex couples are not better than their samesex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”); Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ‘ability to perform or contribute to society.’”); Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D. Ohio 1994) (“[s]exual orientation ... bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society ... If homosexuals were afflicted with some sort of impediment to their abiity to perform and contribute to society the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’ would not exist, their impediment would betray their status”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044, (1996); Kerrigan, 289 Conn. at 180-81 (concluding that the United States Supreme Court’s observation that

52a
race, alienage and national origin “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 is no less applicable to gay persons” in light of fact that sexual orientation plainly bears no relation to an individual’s ability to contribute to society) (internal quotation marks and citation omitted).
The ability to contribute to society has played a critical and decisive role in Supreme Court precedent both denying and extending recognition of suspect class to other groups. In Cleburne, the Supreme Court’s holding that mental retardation was not a suspect class rested almost entirely on its conclusion that it was “undeniable ... that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.” Cleburne, 473 U.S. at 442. Likewise, the Supreme Court twice declined to recognize the elderly as a suspect class on the basis of its conclusions that “physical ability generally declines with age,” Murgia, 427 U.S. at 315-16, and the “unfortunate fact of life that physical [capacity] and mental capacity sometimes diminish with age.” Gregory v. Ashcroft, 501 U.S. 452, 472, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). Unsurprisingly, where the classification has no bearing on one’s ability or capacity to contribute to society the Supreme Court has recognized such groups as suspect or quasi-suspect classes. In Frontiero, the Supreme Court’s recognition that gender constituted a quasi-suspect class in part rested on its reasoning that what “differentiates sex from nonsuspect statuses such as intelligence or

53a
physical disability ... is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” 411 U.S. at 686 (plurality opinion). Likewise, the Supreme Court in Mathews recognized illegitimacy as a quasi-suspect class on the basis that illegitimacy “bears no relation to an individual’s ability to participate in and contribute to society.” Mathews, 427 U.S. at 505-506.
The animating principle throughout these cases demonstrate that “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Cleburne, 473 U.S. at 441. However, where individuals in a group have “been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” will likely offend the principle of Equal Protection. Id. (quoting Murgia, 427 U.S. at 313). Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Accordingly, this factor weighs strongly in favor of recognizing sexual orientation as a quasi-suspect or suspect class.

54a
iii. Defining or Immutable Characteristics
Another relevant consideration is whether the characteristic that defines the class as a discrete group is immutable or otherwise not within the member’s control. Golinski, 824 F.Supp.3d at 986 (citing Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986)). It does not appear that this factor is necessary to trigger heightened scrutiny in view of the Supreme Court’s recognition of suspect class to groups with ostensibly mutable characteristics. The Supreme Court has held that resident aliens constitute a suspect class despite the ability to opt out of the class voluntarily. See Nyquist v. Mauclet, 432 U.S. 1, 9 n.11, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977). Additionally, one’s status as illegitimate may be subject to change and is therefore not a strictly immutable characteristic. See Miller v. Albright, 523 U.S. 420, 431, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (acknowledging that illegitimate child may be legitimated by father). Further as the Kerrigan court astutely observed “not infrequently, the United States Supreme Court has omitted any reference to immutability in discussing the identifying or distinguishing characteristic of a particular class.” Kerrigan, 289 Conn. at 171 n. 20 (citing Murgia, 427 U.S at 313-14; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 20, 25, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 371-72, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971)). Consequently, immutability is not an essential requirement but merely one indication that the classification reflects

55a
“deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20; Olagues v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) (“Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... But immutability is not the sole determining factor.”), rev’d on other grounds, 484 U.S. 806, 108 S. Ct. 52, 98 L. Ed. 2d 17 (1987); Able, 968 F.Supp. at 863 (“[i]mmutability is merely one of several possible indications that a classification is likely to reflect prejudice”).
Plaintiffs argue that sexual orientation should be considered an immutable or defining characteristic in view of the fact that such a characteristic is an integral part of one’s identity and have presented evidence that sexual orientation is an enduring characteristic and highly resistant to change. [Dkt. #63, p. 24-27]. As the Golinski court stated, it appears that “the consensus in the scientific community is that sexual orientation is an immutable characteristic.” Golinski, 824 F.Supp.2d at 986. This conclusion, while not universal, is supported by studies which document the prevalence of long-lasting and committed relationships between same-sex couples as an indication of the enduring nature of the characteristic. [Dkt. # 73, Peplau Aff., ¶22]. While this is not a universally held view, the American Psychological Association task force concluded based on a systematic review of peerreviewed journal literature on sexual orientation change efforts that those efforts “are unlikely to be

56a

successful and involve some risk of harm.” Id. at ¶26

(citing APA Task Force on Appropriate Therapeutic

Responses to Sexual Orientation, 2009, Report of the

Task

Force,

available

at

http://www.apa.org/pi/lgbt/publications/therapeutic-

response.pdf). The American Psychiatric Association,

American Psychological Association, American

Counseling Association, National Association of

Social Workers and the American Academy of

Pediatrics all “have adopted policy statements

cautioning professionals and the public about these

treatments.” Id. at ¶27. See also Perry v.

Schwarzenegger, 704 F.Supp.2d at 966 (“No credible

evidence supports a finding that an individual may,

through conscious decision, therapeutic intervention

or any other method, change his or her sexual

orientation.”). Lastly, studies have also indicated

that the majority of gay men and lesbians report that

they experienced no choice or little choice about their

sexual orientation. [Dkt. # 73, Peplau Aff., ¶25]

(citing 2010 national survey conducted with

representative sample of more than 650 self-

identified lesbian, gay and bisexual adults, 88% of

gay men reported that they had “no choice,” and 7%

reported “very little choice” while 68% of lesbians

responded they had “no choice at all” and 15%

reported having “very little choice.”).

Contrastingly, BLAG argues that homosexuality cannot be immutable considering the multiplicity of terms used to describe homosexual experiences. BLAG contends that “Plaintiffs’ claims run headlong into the differing definitions of the terms ‘sexual orientation,’ ‘homosexual,’ ‘gay’ and ‘lesbian’ supplied

57a

by Plaintiffs’ own experts...These differing

definitions show that these terms are amorphous and

do not adequately describe a particular class.” [Dkt.

#82, p. 22-23]. Although there might be subtle

semantic distinctions between each of these terms

from an academic perspective, each term is

principally defined as pertaining to same-sex

attraction or sexual behavior and could not be

understood without reference to this elemental

concept. In fact, the colloquial definitions of “gay,”

“lesbian” and even “sexual orientation” are each

defined by reference to “homosexual” which is

defined as sexual desire or intercourse between

individuals of the same sex. Merriam Webster

defines “Homosexual” as “of, relating to, or

characterized by a tendency to direct sexual desire

toward individuals of one’s own sex” or “of, relating

to, or involving sexual intercourse between

individuals of the same-sex.” Homosexual Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/homosexual (last visited July

27, 2012). “Gay” is defined as “homosexual;

especially: a homosexual male.” Gay Definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

webster.com/dictionary/gay (last visited July 27,

2012). “Lesbian” is defined as “a woman who is

homosexual.” Lesbian Definition, MERRIAM-

WEBSTER.COM,

http://www.merriam-

webster.com/dictionary/lesbian (last visited July 27,

2012). Lastly, “sexual orientation” is defined as “the

inclination with respect to heterosexual, homosexual

and bisexual behavior.” Sexual orientation definition,

MERRIAM-WEBSTER.COM, http://www.merriam-

58a

webster.com/medical/sexual%20orientation

(last

visited July 27, 2012). Although scholars may

quibble over subtle differences in terminology, it is

clear that none of these terms are neither amorphous

nor incapable of describing a particular class. Indeed,

the colloquial understanding of each of these terms

readily describe a class that is defined by same-sex

attraction and sexual behavior. BLAG’s contention

that “Plaintiffs’ claims run headlong into the

differing definitions of the terms” risks elevating

abstract logic over experience. Here experience

palpably demonstrates that each of these terms is

capable of describing a particular class with

precision and clarity.

BLAG also contends that homosexuality cannot be immutable since Plaintiff’s own expert admits that homosexuality cannot be determined at birth. BLAG points to Plaintiffs’ expert Letitia Anne Peplua’s, Ph.D., (“Peplua”) deposition testimony that “looking at a newborn, I would not be able to tell you what the child’s sexual orientation is going to be.” [Dkt. #82, p. 23] (citing Peplau Dep. at 25:20-23). However, Peplua’s testimony merely acknowledges that unlike race or gender, sexual orientation, either homosexual or heterosexual, has no physical external manifestation and typically develops or emerges not at birth but during adolescence. Indeed, Peplau actually testified in her deposition that since research demonstrates that “people come to understand their sexual orientation most typically during adolescence,” she “would not be able to tell you what the child’s sexual orientation is going to be” at birth. [Dkt. #83, attach 2, Exhibit B, Peplau Dep.,

59a
25:18-23]. When viewed in context, Peplau’s testimony acknowledges that sexuality develops only after an individual begins puberty and such testimony suggests that it would be premature to study sexual orientation prior to adolescence. Considering the nature of the development of sexual orientation generally, the key inquiry is whether sexual orientation is enduring or resistant to change after its development or emergence in adolescence. Therefore Peplau’s statement that sexual orientation cannot be determined at birth is not inconsistent with a conclusion that sexual orientation is also immutable. As discussed above, Plaintiffs have submitted substantial evidence that the consensus in the scientific community is that sexual orientation after its development is immutable.
To the extent that BLAG is suggesting that Peplau’s conclusion that homosexuality cannot be determined at birth reflects the fact that homosexuality is a characteristic that may not be readily visible and therefore not immutable like race or gender, such an argument would be unpersuasive in light of Supreme Court precedent recognizing suspect class status to characteristics that are not readily visible such as illegitimacy or resident alienage. See Mathews, 427 U.S. at 506 (acknowledging that while “illegitimacy does not carry an obvious badge, as race or sex do,” such classification should still be considered a suspect class). Although sexual orientation, like national origin, may not be as obvious a badge as race or sex, that does not indicate that it cannot also be

60a
immutable or that such a classification does not also offend the principles of equal protection.
Lastly, BLAG argues that there can be no immutability where a “significant percentage of gays and lesbians believe they exercised some or a great deal of choice in determining their sexuality.” [Dkt. #82, p. 23]. BLAG presents some evidence which demonstrates there is some fluidity on the continuum or spectrum of sexuality for some individuals who identify as homosexual. BLAG emphasizes that “Plaintiffs’ own evidence indicates that more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation.” Id. However, the Court disagrees with BLAG’s contention that these statistics demonstrate a “significant percentage.” On the contrary, the overwhelming majority of gay men and the vast majority of lesbians indicated they felt they had no or little choice in determining their sexuality.
BLAG also suggests that if sexuality is fluid it cannot also be immutable and highlights that even Plaintiff’s own expert, Peplau, recognizes that sexuality is plastic or fluid and admits that “individuals have reported changes in their sexual orientation in midlife. [Dkt. #82, p. 23] (citing Peplau Aff. at ¶23). However, Peplau explains in her expert affidavit that “the significant majority of adults exhibit a consistent and enduring sexual orientation” but that “[n]onetheless, a small minority of individuals are exceptions to this majority pattern.” [Dkt. #73, ¶23]. Peplau elaborates that “‘claims

61a
about potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.’ Nor does the fact that a small minority of people may experience some change in their sexual orientation over their lifetime suggest that such change is within their power to effect.” Id. Although it appears that a tiny percentage of gay men or lesbians may experience some flexibility in the continuum of their sexuality, there is substantial evidence that the vast majority of gay men and lesbians do not experience any such fluidity in their sexualities and that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm.
BLAG also points to two studies to demonstrate that “a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction.” [Dkt. #82, p. 23]. BLAG points to a study by Lisa M. Diamond and Ritch C. Savin-Williams in which they reported that a study had found that “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity.” Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 J. of Soc. Issues 301 (2000). The authors of the article speculate that changes in identity labels more than once could be explained by the fact that “women with nonexclusive attractions may

62a
comfortably adopt a lesbian or bisexual identity, depending on such factors as the relative intensity of their attractions, perceived prospects for same-sex and other-sex relationships and their social network.” Id. at 301. Consequently, the 50% metric appears to capture individuals who never ceased to experience same-sex attraction but instead fluctuated between same-sex attraction and bisexual attraction. For these individuals, a same-sex orientation was enduring and what fluctuated was whether the individual also felt a capacity for opposite-sex attraction coexistent with their capacity for same-sex attraction. Therefore the 50% metric overstates the amount of individuals who displayed a non-enduring same-sex orientation.
Moreover, it is clear the focus of the study was to examine the subset of women who experience some flexibility in the continuum of their sexuality. The study’s authors state that a “widespread recruiting strategy was undertaken to ensure diversity in women’s histories of same-sex attractions and behaviors and to recruit women who decline to identify as lesbian or bisexual but acknowledge same-sex attractions.” Id. at 299. 46% of Study A participants and 62% of Study B participants identified as bisexual or “unlabeled” or “questioning.” Id. Consequently, the study sought to examine at the outset primarily those individuals who already indicated they experienced flexibility in their sexuality, and therefore cannot be viewed as conclusive evidence that same-sex orientation is not an enduring characteristic nor resistant to change for the majority of individuals who identify as having

63a
only a same-sex orientation. Considering the aim of the study and the composition of the participant pools, the results of the study are not inconsistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Here, the study examined those individuals who were the exception to the majority pattern as evidenced by the study’s primary recruitment of women who identified as bisexual or “unlabeled” or “questioning” as opposed to women who simply identified as lesbian.
The second study cited by BLAG examined sexual attraction at both the ages of 21 and 26 and found that between ages 21 and 26, slightly more men moved away from an exclusive heterosexual attraction (1.9% of all men) than moved towards it (1.0%) while for woman many moved away (9.5%) than towards (1.3%) exclusive heterosexual attraction. The study also noted that a smaller group with major same-sex attraction actually changed less over time. Nigel Dickson et al., Same Sex Attraction in a Birth Cohort: Prevalence and Persistence in Early Adulthood, 56 Soc. Sci. & Med. 1607, 1611-12 (2003). This study is also consistent with Peplau’s conclusion that a “small minority of people may experience some change in their sexual orientation over their lifetime” and are the exception to the majority pattern. [Dkt. #73, Peplau Aff., ¶23]. Neither of these two studies discredits Plaintiffs’ evidence that for the vast majority of gay men and lesbians sexual orientation is an enduring

64a
characteristic that is highly resistant to change. Following BLAG’s logic to its natural conclusion, Blacks or African Americans should not be a protected class because a small percentage of African Americans have features which make them indistinguishable from Caucasians or European Americans. On this basis alone, the Court finds that the Plaintiffs have satisfied their burden with respect to this factor.
Lastly, BLAG argues that federal precedent supports the conclusion that sexual orientation is not immutable. As the Kerrigan court observed, “[a] number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion.” Kerrigan, 289 Conn. at 184 (collecting cases). Notably, the cases concluding that homosexuality is not an immutable characteristic relied on Bowers’s conceptualization of homosexuality as purely behavioral. See High Tech Gays, 895 F.3d at 573 (“[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender or alienage, which define already existing suspect and quasi-suspect classes”); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[m]embers of recognized suspect or quasi-suspect classes, e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature”); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), rev’d, 54 F.3d 261 (6th

65a
Cir.1995), vacated and remanded, 518 U.S. 1001, 116 S. Ct. 2519, 135 L. Ed. 2d 1044 (1996) (“[t]hose persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them as homosexual, bisexual, or heterosexual”) (emphasis in the original). Once again, this conclusion ignores the fact that certain human beings within a certain classification may have characteristics more akin to persons of another classification. In determining whether to accord protected class status courts base their decisions on the characteristics of the vast majority of the class members and have not withheld it because there exists anomalous outliers within that class.
Moreover, Supreme Court precedent has since rejected the artificial distinction between status and conduct in the context of sexual orientation. See Christian Legal Society Chapter of California, Hastings College of Law v. Martinez, 130 S.Ct. 2971, 2990, 177 L. Ed. 2d 838 (2010) (“Our decisions have declined to distinguish between status and conduct in this context”); Lawrence, 539 U.S. at 575 (“When 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.”) (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than

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conduct. It is instead directed toward gay persons as a class.”). Consequently, the precedential underpinnings of those cases declining to recognize homosexuality as an immutable characteristic have been significantly eroded. Accordingly, the Court relies instead on more contemporary precedent on the issue of whether homosexuality is an immutable characteristic.
The move away from viewing homosexuality as conduct to status based was driven in part by the increasing recognition that sexual orientation is fundamental and central to one’s identity. Indeed, the Supreme Court’s holding in Lawrence acknowledged that the “right of homosexual adults to engage in intimate, consensual conduct ... [represents] an integral part of human freedom” and recognized that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” 539 U.S. at 567.
Prior to Lawrence, the Supreme Court recognized the centrality of human intimacy to human development. Nearly 40 years ago, it stated that sexual intimacy is “a sensitive, key relationship of human existence, central to ... the development of human personality...” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).
In line with this understanding that sexual intimacy is an integral part of human freedom and

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the development of human personality, the Ninth Circuit has persuasively held that since sexual orientation and sexual identity are “so fundamental to one’s identity that a person should not be required to abandon them;” and therefore, “[s]exual orientation and sexual identity are immutable.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing that homosexuality is a fundamental aspect of human identity and seeing “no appreciable difference between an individual … being persecuted for being a homosexual and being persecuted for engaging in homosexual acts.”); see also In re Marriage Cases, 43 Cal. 4th 757, 842, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 289 Conn. at 186-87(“In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution.”); Golinski, 824 F.Supp.2d at 987 (finding persuasive the Ninth Circuit’s prior holding

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that “a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”).
Judge Norris of the Ninth Circuit in a concurring opinion has cogently explained the rationale behind the majority’s conclusion that sexual orientation is immutable. Judge Norris explained that
[i]t is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. People can have operations to change their sex. Aliens can ordinarily become naturalized citizens. The status of illegitimate children can be changed. People can frequently hide their national origin by changing their customs, their names, or their associations. Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections. At a minimum, then, the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity.
Watkins, 875 F.2d at 726 (Norris J. Concurring) (citation omitted). Accordingly, immutability should “describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them.” Id.

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This Court finds the reasoning of the Ninth Circuit to be persuasive in view of the fact that the Supreme Court has already demarcated sexual intimacy, both heterosexual and homosexual, as an integral part of human freedom and the development of human personality, thereby suggesting that sexual orientation should be considered a defining characteristic fundamental to one’s identity much like race, ethnicity or gender. Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic should be considered immutable and an individual should not be required to abandon it. To hold otherwise would penalize individuals for being unable or unwilling to change a fundamental aspect of their identity; an aspect which has been recognized as an integral part of human freedom. On this basis as well, this factor weighs in favor of the application of heightened scrutiny.
iv. Minority Status and Political Powerlessness
The final factor courts consider is whether the subject group is “a minority or politically powerlessness.” Bowen v. Gilliard, 483 U.S. 587, 602, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (internal quotation marks omitted). “This factor examines relative political power and seeks the answer the question whether the ‘discrimination is unlikely to be soon rectified by legislative means.’” Golinski, 824 F.Supp.2d at 987 (quoting Cleburne, 473 U.S. at 440).

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Courts place less weight with respect to this fourth and final factor considering that the Supreme Court has recognized gender as a quasi-suspect class despite the fact that the group was neither a minority nor truly politically powerless. See Frontiero, 411 U.S. at 686 n.17 (plurality opinion) (acknowledging that women “do not constitute a small and powerless minority”); see also Equality Foundation, 860 F.Supp. at 437-38 n.17 (“[T]he significance of the [political powerlessness] test pales in comparison to the question[s] of whether ... the characteristic bears any relationship to the individual[‘]s ability to function in society, whether the group has suffered a history of discrimination based on misconceptions of that factor and whether that factor is the product of the group’s own volition.”); In re Marriage cases, 43 Cal. 4th at 84243 (concluding that political powerlessness cannot be required for heightened scrutiny to apply because other groups like women and African Americans continue to be accorded heightened protection although they are no longer lacking in political power). As the Kerrigan court astutely observed, “[w]e do not doubt, moreover, that the [United States Supreme] court has accorded little weight to a group’s political power because that factor, in contrast to the other criteria, frequently is not readily discernible by reference to objective standards. Thus, an attempt to quantify a group’s political influence often will involve a myriad of complex and interrelated considerations of a kind not readily susceptible to judicial fact-finding.” 289 Conn. at 171. Despite this inherent difficulty, the

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Court will endeavor to delve into this myriad of complex and interrelated considerations.
Plaintiffs argue that “[g]ay men and lesbians do not possess a meaningful degree of political power, and are politically vulnerable, relying almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve their goals or protect their interest” and that “obstacles to political power for gay men and lesbians are manifold.” [Dkt. #63, p.21]. There appears to be no dispute in the record that gay men and lesbians are both nationally and locally a minority. See [Dkt. #72, Segura Aff., ¶45] (citing a recent national study estimating that the gay, lesbian and bisexual population of the Unites States to be approximately 3.5%).
Plaintiffs contend that the lack of meaningful political power is further demonstrated by the fact that since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states. [Dkt. #62, Pl. Separate Statement of NonAdjudicative Facts, ¶71]7. Most recently months after the parties filed their summary judgment briefing in this matter, North Carolina voters approved a ballot initiated on May 8, 2012 that
7 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statement ¶71 concerning the number of states that have passed anti-gay marriage statutes or constitutional amendments is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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proposed an amendment to the North Carolina Constitution to define marriage as between one man and one woman. Rachel Weiner, North Carolina passes gay marriage ban Amendment One, Washington Post Blog (May 8, 2012, 9:17am), http://www.washingtonpost.com/blogs/thefix/post/north-carolina-passes-gay-marriage-banamendment-one/2012/05/08/gIQAHYpfBU_blog.html.
Gay men and lesbians are legally discriminated against in a variety of ways. By way of illustration, gay men and lesbians are prohibited from adopting children in five states. [Dkt. #72, ¶39]. In addition, there are no federal prohibitions against discrimination based on sexual orientation in employment, housing, public accommodations, or education, nor any such protection in 29 states. [Dkt. #62, ¶¶68, 70]8 ; see also Kiley v. American Soc. For Prevention of Cruelty to Animals, 296 Fed. Appx. 107, 108 (2d Cir. 2008) (Plaintiff “may not bring a claim under Title VII for discrimination based on sexual orientation” because “the statute does not recognize homosexuals as a protected class.”).
Lastly, openly gay officials are underrepresented in political office in proportion to the gay and lesbian population. [Dkt. #72, ¶¶45-47]. Plaintiffs reveal that these are just a few examples of their relative lack of
8 The Court notes that BLAG has moved to strike portions of Plaintiffs’ Statement of Non-Adjudicative Facts. Here, Statements ¶¶68,70 concerning the lack of federal and state prohibitions against discrimination based on sexual orientation is appropriately the subject of judicial notice and therefore the Court may properly consider this fact in its analysis.

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political power and are an indication that discrimination against homosexuals is unlikely to be soon rectified by legislative means.
Plaintiffs also acknowledge that gay men and lesbians as a group are not entirely lacking in political influence but emphasize that the relatively modest gains made to mitigate discrimination against homosexuals were principally won through the courts and not the majoritarian political process. Plaintiffs argue that a total lack of political power is not a requirement for this factor noting that “women and racial minorities have won political power and protections far exceeding those won by gay men or lesbians, yet discrimination based on gender and race continues to warrant heightened scrutiny.” [Dkt. #94, Pl. Reply to Motion for Summary Judgment, p. 16]. As Plaintiffs note, courts do continue to apply heightened scrutiny to classifications based on race and gender despite the tremendous gains both groups have made politically and continue to make.
As the Kerrigan court noted the Supreme Court in most cases “has no more than made passing reference to the political power factor without actually analyzing it,” and “[i]n view of this fact, and because the extent to which a group possess or lacks political power is neither readily discernible nor easily measurable, this facet of the suspectness inquiry aptly has been characterized as ill-defined.” 289 Conn. at 191-92 (internal quotation marks and citation omitted). However, despite the ill-defined nature of this factor, Supreme Court precedent does

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not require a total lack of political power to satisfy this facet of the suspectness inquiry. Indeed, the Supreme Court in Fronteiro expressly recognized the gains women had made politically when they recognized gender as a suspect class. The Supreme Court highlighted that:
[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sexbased classifications. In [Title] VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the [a]ct shall discriminate against any individual on the basis of race, color, religion, sex, or national origin. Similarly, the Equal Pay Act of 1963 provides that no employer covered by the [a]ct shall discriminate ... between employees on the basis of sex. And § 1 of the [e]qual [r]ights [a]mendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the [s]tates for ratification, declares that [e]quality of rights under the law shall not be denied or abridged by the United States or by any [s]tate on account of sex.
Frontiero, 411 U.S. at 687 (Internal quotation marks omitted). The Supreme Court ultimately declined to view this factor in a rigid fashion instead allowing women to satisfy this factor despite the fact that women were not entirely politically powerless. The Supreme Court concluded that while “[i]t is true, of course, that the position of women in America has

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improved markedly in recent decades” despite such improvement “women 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.” Id. at 685-86. Consequently, the Supreme Court held that “when viewed in the abstract, women do not constitute a small and powerless minority” however “in part because of past discrimination, women are vastly underrepresented in the Nation’s decisionmaking councils.” Id. at 686 n.17.
The emphasis of the Supreme Court’s analysis in Frontiero appears to be focused more on whether discrimination against the subject group is unlikely to be soon rectified by legislative means as opposed to a measurement of whether the subject group has any political power. Therefore there appears to be no requirement that a group demonstrate that it is without any political power in order to be recognized as a suspect class but instead the group must demonstrate that effecting widespread change through the majoritarian process will be onerous. See also Golinski, 824 F.Supp.2d at 987 n.7 (concluding “the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness.”) (citing Rodriguez, 411 U.S. at 28; Cleburne, 473 U.S. at 445); Kerrigan, 289 Conn. at 196-97 (“We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient

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political strength to bring a prompt end to the prejudice and discrimination through traditional political means.”).
BLAG argues that Plaintiffs have failed to demonstrate that gay men and lesbians lack political power in view of recent political, legal and cultural gains made by homosexuals. In support of this argument, BLAG offers into evidence a list of achievements and advancements made by gay men and lesbians, which it argues “signals a trend that has been occurring for some time.” See [Dkt. #82, p. 12-16]. The evidence offered by BLAG in support of this trend, establishes that homosexuals are not totally devoid of political power, however it does not establish that gay men and lesbians have sufficient political power to bring a prompt end to the prejudice and discrimination perpetrated against them through traditional political means.
First, BLAG argues that gay men and lesbians cannot maintain they lack political power in light of the current Administration’s decision to decline to defend the constitutionality of DOMA. Id. at 12. BLAG made this same exact argument before the Northern District of California in the Golinski matter. This Court also finds that this contention is unsupported by the evidence in the record. BLAG argues that President Obama was persuaded by a letter from the Human Rights Campaign to abandon the defense of DOMA. Id. at p. 12-13. However, as the Golinski court noted this letter was sent almost two years prior to the announcement of the

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Administration’s current opinion. Golinski, 824 F.Supp.2d at 988.
Moreover, the Department of Justice has an independent obligation to assess the constitutionality of any statute that it is tasked with defending. There is no evidence that the Attorney General’s decision was the result of anything but his independent assessment. Indeed, Attorney General Eric Holder states in his letter to Congress declining to defend DOMA that although “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 the government . . 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” and concludes that “[t]his is a rare case where the proper course is to forgo the defense of this statute.” [Dkt. #39, attach 2, Holder Letter, p. 5]. This Court agrees that BLAG’s “contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.” Golinski, 824 F.Supp.2d at 988.
Next BLAG argues that “[a] spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.”

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[Dkt. #82, p. 13-14]. Although these articles do document certain advancements made by homosexuals, these advances when viewed in context do not indicate that gay men and lesbians have meaningful political power. Instead, these articles document events which are really episodic in nature. Moreover, an event’s newsworthiness could very well indicate that the event is aberrational or exceptional as opposed to an ordinary or commonplace occurrence.
First, BLAG submits articles on President Obama’s nomination of four openly-gay judges and the confirmation by the Senate of the first openly gay male federal judge. Id. Even considering that President Obama has nominated four openly-gay federal judges and one judge has since been confirmed, gay men and lesbians are still grossly underrepresented in the federal judiciary. There are currently 874 authorized Article III judgeships. Federal Judgeships, United State Courts, http://www.uscourts.gov/JudgesAndJudgeships/Fede ralJudgeships.aspx (last visited July 27, 2012). A recent study has estimated that approximately 3.5% of the United States population is gay, lesbian or bisexual. [Dkt. #72, ¶45]. There would have to be approximately 30 openly-gay federal judges for the federal judiciary to reflect the population. Moreover, judicial appointments do not truthfully reflect the political power of a subject-group to rectify discrimination by legislative means in light of the bedrock constitutional principle of separation of powers. It is axiomatic that the federal judicial power “must be exercised by judges who are

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independent of the Executive and Legislature in order to maintain the checks and balances that are crucial to our constitutional structure.” Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 860, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986). The federal judicial power is driven by principles of equity and stare decisis that are intentionally divorced and distinct from the political will of both the legislature and the executive. The representation of openly-gay judges in the federal judiciary therefore cannot be a fitting proxy for political power.
Second, BLAG points to an article regarding the Governor of California’s recent signing of legislation which requires California’s public school textbooks to include historical contribution of lesbian, gay, bisexual, and transgendered (“LGBT”) Americans. [Dkt. #82, p. 13-14] (citing Wyatt Buchanan, New State Law Requires LGBT History in Textbooks, S.F. Chron, July 15, 2011, http://www.sfgate.com/ news/article/New-state-law-requires-LGBT-historyin-textbooks-2354578.php). The passage of such legislation suggests only an isolated achievement for gay rights generally in one state and is not indicative of gay men and lesbians’ political clout in a majority of states. Indeed months after the signing of California’s bill, both Tennessee and Missouri introduced “Don’t say gay” bills which would not only have the effect of prohibiting the teaching of LBGT history in schools but would also prohibit any discussion of homosexuality in public schools more broadly. In Tennessee, the proposed bill would prohibit public elementary and middle schools from providing any instruction or material that “discusses

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sexual orientation other than heterosexuality.” See, Chas Sisk, Tennessee lawmakers advance ‘don’t say gay’ bill, USA Today, February 16, 2012, http://www.usatoday.com/ news/nation/story/201202-16/tennessee-bill-homosexuality/53116470/1; see also proposed Senate Bill 0049, available at http://www.capitol.tn. gov/Bills/107/Bill/SB0049.pdf. In Missouri, the “bill would prohibit public school from being able to talk about sexual orientation except in terms of reproduction.” See, Allison Blood, Controversial “Don’t Say Gay” bill Debated in MO House, CBSlocal, April 23, 2012, http://stlouis. cbslocal.com/2012/04/23/controversial-dont-say-gaybill-debated-in-mo-house/; see also proposed House Bill No.2051, available at http://www.house. mo.gov/billtracking/bills121/biltxt/intro/HB2051I.ht m. Since only one out of fifty states has adopted legislation mandating the teaching of LBGT history, the Court does not find this particular news article to be demonstrative of gay men and lesbians’ political clout. On the contrary, these legislative backlashes illustrate the powerlessness of gays and lesbians in America today.
Lastly, BLAG points to articles documenting Rhode Island’s recent passage of a bill instituting civil unions for same-sex couples, New York’s legalization of same-sex marriage, the repeal of the “Don’t Ask, Don’t Tell” policy, President Obama’s announcement of his support for a senate bill to repeal DOMA and Vice President Biden’s statement that a national consensus on gay marriage is inevitable. [Dkt. #82, p. 14, 19]. As the Golinski court noted, “[o]nly a handful of states have successfully

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passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions.” Golinski, 824 F.Supp.2d at 988. By contrast, since 1990 anti-gay marriage statutes or constitutional amendments have been passed by 41 states and are continuing to be proposed and passed. [Dkt. #62, ¶71]. As the Golinski court pointed out, “[i]n contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.” Golinski, 824 F.Supp.2d at 988 (citing Loving, 388 U.S. at 6). New York and Rhode Island’s recent legislation is in no real sense indicative of meaningful political power in the context of a suspect classification analysis.
Next, BLAG argues that gays and lesbians “have wielded considerable power in corporate America” noting that there is “even a gay chamber of commerce dedicated to certifying business as gay owned.” [Dkt. #82, p. 14 -15]. However BLAG cites to no authority or evidence demonstrating that this “corporate power” has effected appreciable socioeconomic or political change beneficial to gays and lesbians or that this is equivalent to political power. Without any demonstration of a nexus between homosexuals’ alleged “corporate power” and their ability to end discrimination by legislative means this Court finds evidence of corporate power irrelevant to its analysis.
BLAG also argues that “significant sums of money also have been spent by gay and lesbian advocacy groups.” However this argument is flawed

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for the same reason. Moreover there appears to be evidence that despite these sums raised, gay men and lesbians are still unable to impact the outcome of legislative processes as the campaign against proposition 8 in California illustrated. Despite the significant amount of funds raised to defeat proposition 8 and the purported corporate power of gay men and lesbians “the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights.” Golinski, 824 F.Supp.2d at 988; See also Tamara Audi, Justin Scheck, and Christopher Lawton, “California Votes for Prop 8,” WALL STREET JOURNAL, November 5, 2008, http://online.wsj.com/article/SB1225860567 59900673.html (noting that $38 million was raised to support gay marriage and more than $32 million to ban it).
BLAG also highlights that the “Gay and Lesbian Victory Fund, a group devoted to electing gays and lesbians to office” and the Human Right Campaign indicated that a record number of candidates deemed “fair-minded” were elected to office in 2008. [Dkt. #82, p. 17]. However, there is no evidence in the record that the election of these candidates in 2008 resulted in any positive legislative outcomes for gay men and lesbians. BLAG has failed to demonstrate that the alleged “gay corporate power,” the ability of gay men and lesbians to raise money for advocacy, or the election of fair-minded candidates in 2008 has actually translated into an ability to imminently end discrimination, prejudice and to prevent unfavorable outcomes such as Proposition 8 or “don’t say gay” type legislation.

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In sum, the record demonstrates that despite some modest successes in mitigating existing discrimination, the record clearly demonstrates that gay men and lesbians continue to suffer discrimination that is “unlikely to be ... rectified by legislative means.” Cleburne, 473 U.S. at 440. Moreover, these modest successes pale in comparison to the gains women had made at the time of the Supreme Court’s decision in Frontiero. See Kerrigan, 289 Conn. at 210-211 (concluding”[w]ith respect to the comparative political power of gay persons, they presently have no greater political power-in fact, they undoubtedly have a good deal less such influence-than women did in 1973, when the United States Supreme Court, in Frontiero, held that women are entitled to heightened judicial protection... In view of the conclusion of the court in Frontiero that women were entitled to heightened judicial protection despite their emergence as a growing political force and despite the widespread, bipartisan support for the equal rights amendmentthe imminent ratification of which seemed all but assured-we see no justification for depriving gay persons of such protection.”). As was the case for women at time of the Supreme Court’s decision in Frontiero, gay men and lesbians likewise still face pervasive discrimination in the political arena despite some modest gains. The Court therefore agrees with Justices Brennan and Marshall’s conclusion in their dissent in Rowland that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested

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against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 470 U.S. 1009, 1014, 105 S. Ct. 1373, 84 L. Ed. 2d 392 (1985). Although not necessary to trigger heightened scrutiny, this Court finds that gay men and lesbians lack meaningful political power sufficient to satisfy this factor of the suspectness inquiry.
Having considered all four factors, this Court finds that homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny.9
9 Since the Court has found that heightened scrutiny applies based on its conclusion that sexual orientation is a quasisuspect or suspect class, the Court need not address Plaintiffs’ alternative argument that heightened scrutiny is appropriate because DOMA burdens the fundamental interest in maintaining existing family relationships as courts generally decide constitutional questions on the narrowest ground available. However, the Court notes that the Supreme Court has recognized the existence of a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education …. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail,

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434 U.S. 374, 384, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1987) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”); Griswold v. Connecticut, 381 U.S. 479, 486, 495, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” and therefore the “right ‘to marry, establish a home and bring up children was an essential part of the liberty guaranteed by the Fourteenth Amendment’”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)). As the Golinski court noted, “the analysis of the fundamental right to marry has not depended upon the characteristics of the spouse.” Golinski, 824 F.Supp.2d at 982 n.5. Further the Supreme Court’s recognition in Lawrence that the “right of homosexual adults to engage in intimate, consensual conduct” is also essential part of the liberty protected by the Constitution like the right to marry suggests that the liberty interest in marriage should not be restricted by sexual orientation. 539 U.S. at 576. Although not the subject of this Court’s opinion nor the Parties’ briefing, the Court notes that this line of reasoning could serve as an alternative basis for the application of heightened scrutiny to classifications based on sexual orientation. The Court further notes that such a basis would likely not run afoul of Baker as a lower court is not bound by a summary dismissal where “doctrinal developments indicate” that the Supreme Court would no longer consider the federal question decided in the summary dismissal to be unsubstantial. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975). Arguably, the Supreme Court’s subsequent decisions in Romer and Lawrence reflect doctrinal developments that suggest the Supreme Court would no longer consider the federal question in Baker to be unsubstantial and therefore binding on lower courts.

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However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny. 10
E. Rational Basis Review
As discussed above, in this Court’s opinion, homosexuals warrant judicial recognition as a suspect classification. However, the Supreme Court has declined to afford them such status, opting instead to apply rational basis review rather than definitively address whether sexual orientation constitutes a suspect or quasi-suspect class. Accordingly, the Court will apply rational basis review. Even under this, the least intrusive level of review, Section 3 of DOMA fails to withstand constitutional scrutiny.
As previously discussed, laws incorporating classifications which neither target a suspect class nor burden a fundamental right are subject to rational basis review. “Rational basis review is the ‘paradigm of judicial restraint.’” Windsor, 833 F.Supp.2d at 400 (quoting FCC v. Beach Communs.,
10 The Court also notes that the Supreme Court’s summary dismissal in Baker does not preclude the Court from considering whether sexual orientation is a suspect class as the Minnesota Supreme Court only considered the question of whether there was a constitutional right to same-sex marriage. Consequently, Baker also has no consequence to whether heightened scrutiny is appropriate on the basis of a suspect classification.

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Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)). This deferential standard of review accords the classification “a strong presumption of validity,” requiring only “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). The proponent of the law “has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” Id. at 320 (quoting Beach, 508 U.S. at 315). The legislature “need not ‘actually articulate at any time the purpose or rationale supporting its classification.’” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)). Under rational basis review, “[a] statute is presumed constitutional and [t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citations omitted). Thus, “a classification ‘must be upheld against equal protection challenge if there is any reasonable conceivable state of facts that could provide a rational basis for the classification.’” Id. (quoting Beach, 508 U.S. at 313). The standard of rational basis review recognizes that “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations – illogical , it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S. Ct. 441, 57 L.

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Ed. 730 (1913). Accordingly, “[a] classification does not fail rational basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks and citations omitted). Even if the rationale for the law seems tenuous, it is rationally related to the government interest if it bears some relation to that interest. Romer, 517 U.S. at 632-33. The Court must accept Congress’s generalizations “even when there is an imperfect fit between means and ends,” Heller, 509 U.S. at 321, as long as the generalization is “at least debatable.” Id. at 326 (internal quotations omitted).
On the other hand, rational basis review is not indiscriminately deferential, “even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the objective to be attained.” Romer, 517 U.S. at 632. “The law must bear a logical relationship to the purpose it purports to advance.” Golinski, 824 F.Supp.2d at 996. As the Supreme Court has recognized, “[t]he search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer, 517 U.S. at 632. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that the classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Id. at 633 (citation omitted).
Although the legislature need not articulate the purpose or rationale supporting its classification,

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where, as here, articulated purposes are available, the Court’s inquiry will begin by discussing such purposes. See Heller, 509 U.S. at 320. The House Committee Report identifies “four governmental interests advanced by this legislation [DOMA],” including:
(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 governmental resources.
House Report at 12. BLAG, as the IntervenorDefendant, has raised several additional objectives which could also have motivated Congress to include a classification based on sexual orientation in Section 3 of DOMA. Specifically, BLAG asserts that “Congress rationally could have been, and in fact was, concerned” with the following objectives:
1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage;
2) To protect the public fisc;
3) To maintain consistency and uniformity with regard to eligibility for federal benefits;
4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and

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5) To recognize an institution designed to ensure that children have parents of both sexes.
See [Dkt. #81, p. 11].
As rational basis review requires the Court to consider not only the articulated legislative objectives, but also any “reasonable conceivable set of facts that could provide a rational basis for the classification,” the Court will consider all of the aforementioned objectives to determine whether the Plaintiffs have sustained their burden to negate “every conceivable basis which might support [the statute].” Heller, 509 U.S. at 320 (internal citations omitted).
1. Defending and Nurturing the Institution of Traditional Heterosexual Marriage
The House Report argues that it was necessary to exclude same-sex marriages from the federal definition of marriage for two reasons. First, the Report asserts that Congress, concerned about the children of America, “has a special obligation to ensure that we preserve and protect the institution of marriage.” House Report at 14. The Report notes that “[w]ere 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.” Id. This argument is closely related to BLAG’s assertion that Congress could have restricted same-sex marriages from receipt of federal marital benefits in order “to avoid creating a social understanding of bearing, begetting, and rearing

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children separate from marriage.” BLAG posits that “Congress rationally could have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, recognition of same-sex marriages would lead to an increase in the number of children being raised outside of the marital context.” [Dkt. #81, p. 43]. These objectives, though articulated slightly differently, essentially assert that Congress could have rationally have prohibited same-sex married couples from receiving federal marital benefits because providing such benefits to married couples who are not biologically capable of producing children would result in a disassociation of the concepts of producing and rearing children from the institution of marriage, such that heterosexual couples who are biologically capable of producing children would increasingly elect to raise children outside of the marital context. Stated differently, BLAG suggests that DOMA was enacted to encourage marriages between only those persons who could procreate, namely heterosexuals, and to counteract the devaluation of marriage resulting from laws permitting homosexuals to marry.
To support its contention that Congress could rationally have been concerned that providing federal marital benefits to same-sex married couples would increase the number of opposite-sex couples electing to procreate outside of marital relationships, BLAG references a study considered by Congress relating to several Scandinavian countries who reported experiencing an increase in out-of-wedlock births following the emergence of domestic

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partnerships and same-sex marriages. [Dkt. #81, p. 44-45]. Additionally, BLAG cites the testimony before Congress of members of the African-American and Hispanic communities expressing concern that the erosion of the “traditional” institution of heterosexual marriage has “had a devastating effect” on their respective communities due to the increase in out-of-wedlock births. Id. at 44.
Plaintiffs challenge this objective championed by both BLAG and Congress, asserting that rational speculation does not support the hypothesis that denying federal marital benefits to same-sex married couples would discourage opposite-sex couples from marrying before procreating. Plaintiffs dispute the credibility of the studies referenced by both BLAG and Congress, positing that the studies are merely “political rhetoric,” and in fact the attribution of the rise in out-of-wedlock births to the emergence of domestic partnerships and same-sex marriages has been “thoroughly discredited.” [Dkt. #95, p. 23]. In particular, Plaintiffs argue that the very studies relied upon by BLAG and Congress acknowledge that in fact, the trend in non-marital births in the countries at issue began in the 1970s, long before homosexual couples received societal recognition or were conferred legal status.
Additionally, Plaintiffs dispute the underlying assumption that the social understanding of marriage is inextricably bound with procreation and child-rearing, noting that the ability to procreate has never been a precondition to marriage. Nor have children adopted by heterosexual couples or single

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individuals or children conceived through medical procedures been denied federal benefits or recognition. Couples unable to conceive have not been deprived of any benefits nor has their union been devalued in any way.
Lastly, Plaintiffs argue that denying same-sex couples federal marital benefits and obligations under the guise of seeking to protect America’s youth by discouraging extra-marital procreation ignores the reality that Section 3 of DOMA does not deny same-sex married couples the right to adopt children. Consequently, under DOMA, children being raised by same-sex parents would in fact be disadvantaged by the denial of resources and benefits to their parents and to them as survivors upon their parent’s demise as a result of DOMA’s sexual orientation classification.
Mindful of the fact that the Court must refrain from scrutinizing “the wisdom, fairness, or logic of legislative choices,” see Heller, 509 U.S. at 319, the Court finds that no rational relationship exists between the denial of federal marital benefits to same-sex married couples and the objective of discouraging extra-marital procreation. See Romer, 517 U.S. at 632 (“even in the most ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained.”). BLAG’s attempt to offer statistical support for its argument that Congress could have rationally believed that recognizing same-sex marriages and conferring federal marital benefits

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upon such marriages would further erode the societal conception of marriage as the appropriate childrearing environment is unavailing.
The Scandinavian study referenced in support of the rationality of such a belief lists a host of statistics which purport to reveal a decline in traditional heterosexual marriage, such as a 25% increase in cohabitation and extra-marital parenting during the 1990s in Denmark, an 11% increase in the out-of-wedlock birth rate in Norway during the 1990s, and an 8% increase in the out-of-wedlock birth rate in Sweden during the 1990s. See Stanley Kurtz, The End of Marriage in Scandinavia, Weekly Standard (Feb. 2, 2004). However, the study begins by explicitly acknowledging that the “trend toward separation of marriage and parenthood” had already begun long before the legalization of gay marriage in the three countries and the study makes no attempt to isolate the factor(s) which instigated the trend, nor the factor(s) which may be contributing to the continuation of the trend. Id. Although the study notes that the “family dissolution rate” has accelerated since the beginning of the trend, the study does not endeavor to discern whether the factor which prompted the trend has intensified, thus causing the acceleration, or whether new factors have emerged to cause the acceleration, and if so, what those new factors may be and their relative impact on the trend. Id.
Rather than citing the advent of same-sex marriage as the impetus for this demographic trend, the study acknowledges several other factors which

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may have sparked the trend, including the development of contraceptive methods, abortion, “growing individualism,” and the “movement of women into the workforce.” Id. These factors have in fact intensified, such that it is rational to surmise that their intensification alone has led to the acceleration of the rate at which Scandinavian families are electing to procreate outside of the marital context. For example, the amount and variety of contraceptive methods have increased significantly since the 1960s and the presence of women in the workforce has likely increased in light of expansion of regulation of employment discrimination and growing flexibility in part-time and remote-access work options. The failure to consider or control for the fact that the intensification of these initial instigating factors, rather than the legalization of same-sex marriage, may explain the accelerated rate of out-of-wedlock procreation precludes a finding that it would be rational to rely on the study as an indication that conferring federal marital benefits on same-sex couples would discourage couples from marrying prior to procreating.
The study also acknowledges a host of lateremerging factors which may have contributed to the acceleration of the trend of extra-marital procreation, including the expansion of the welfare state which “renders each individual independent,” and undermines the need to rely on a family structure to provide for and raise children and which increases taxes, thereby driving women into the workforce, further increasing their independence. Kurtz, The

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End of Marriage in Scandinavia. The study also recognizes the contribution of cultural-ideological causes such as “radical feminist and socialist ideas [which] pervade the universities and the media,” and secularism. Id. Moreover, countless other factors which were not considered by the study may readily be inferred to have contributed to the trend, including the rise in social media facilitating communication between and connections amongst individuals on the basis of shared interests, mutual friends, or membership in a particular community, the rise of the internet more generally, the influence of economic pressures, or the formation of the European Union. In light of the study’s failure to consider and control for the host of other factors which may have contributed to the trend of increasing extra-marital procreation, it is not rational to rely on this study to speculate that conferring federal marital benefits on same-sex marriages will lead to an increase in extra-marital procreation in the United States.
Further, Section 3 of DOMA is inimical to its stated purpose of protecting children. As the Plaintiffs have acknowledged, DOMA does not alter or restrict the ability of same-sex couples to adopt children, a right conferred by state law, and therefore DOMA’s denial of federal marital benefits to same-sex married couples in fact leads to a significant unintended and untoward consequence by limiting the resources, protections and benefits available to children of same-sex parents. Each of the states in which the Plaintiffs reside, including Connecticut, Vermont and New Hampshire, permit

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same-sex couples to adopt children and afford homosexual individuals the ability to enforce their parental rights. As the Vermont Supreme Court summarized, in 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior legal barriers to the adoption of children by same-sex couples. See 15 Vt. Stat. Ann. tit. 15A, §1-102 (1995). At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parentchild contact in the event that same-sex parents dissolved their ‘domestic relationship.” Baker v. State, 170 Vt. 194, 222, 744 A.2d 864, 885 (1999). The Connecticut Supreme Court has acknowledged that “it is the public policy of this state that sexual orientation bears no relation to an individual’s ability to raise children,” as reflected by Conn. Gen. Stat. §45a-727, permitting same sex couples to adopt children. Kerrigan, 289 Conn. at 181. Similarly, New Hampshire repealed a prior law banning homosexual individuals from fostering and adopting children. N.H. Rev. Stat. Ann. §170-B:4 (2004). DOMA hamfistedly deprives these adopted children of governmental services and benefits desirable, if not necessary, to their physical and emotional wellbeing and development creating an increased potential that they will become a burden on society.
DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections. For example, Section 3 of DOMA

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deprives members of same-sex marriages of the right, under the FMLA, to take leave to care for a spouse with a serious health condition, as Plaintiffs Raquel Ardin and Lynda DeForge have experienced. Children of same-sex families would undoubtedly suffer from their parents’ inability to rely on this federal marital benefit, as their household would be put under greater stress in attempting to cope with the serious illness of a parent. Section 3 of DOMA also prevents same-sex married couples from filing joint-tax returns, resulting in an increased tax burden for such couples and depleting the resources available to provide for their children. These are merely two examples of the impact of DOMA on children of same-sex marriages, consequences which directly contradict the objective which BLAG asserts Congress could rationally have sought to attain, that is, promoting the institution of marriage as the ideal forum for begetting and rearing children.
Assuming, as Congress has, that the marital context provides the optimal environment to rear children as opposed to non-marital circumstances, it is irrational to strive to incentivize the rearing of children within the marital context by affording benefits to one class of marital unions in which children may be reared while denying the very same benefits to another class of marriages in which children may also be reared. Such a legislative scheme bears no rational relationship to its objective of fostering marital relationships as the optimal environment to rear children because the legislation in effect harms those children who are raised within marital unions that are denied access to federal

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marital benefits, thereby creating a social deterrent from raising children within the marital context.
Further, Section 3 of DOMA disincentivizes heterosexual marriage by relieving homosexual couples of legal obligations imposed on heterosexual couples. For example, federal officials are subject to financial disclosure requirements to guard against abuse of official office and similar improprieties. See, e.g., 28 U.S.C. §§455(b)(4), 455(c) (requiring federal judges to recuse themselves from matters in which the judge or the judge’s spouse has a financial interest and to remain informed about the judge’s personal and fiduciary financial interests and those of the judge’s spouse); see also 5 C.F.R. §§2635.402(a), 2635.402(b)(2) (prohibiting employees of the executive branch from participating in matters in which an employee or an employee’s spouse has a financial interest); 5.U.S.C. App. §101 (requiring federal officials to file a financial disclosure report within thirty days prior to assuming the position of federal employment).11 These laws require disclosure of the financial interests of the public official’s spouse. By excluding a same-sex spouse from these ethical obligations and financial disclosure requirements, Section 3 of DOMA illogically burdens
11 Federal officials obligated to file a financial disclosure report include foreign service officers, officers or employees of the executive branch, members of Congress, judicial officers and employees, civilian employees of the Executive Office of the President appointed by the President, and candidates for nomination or election to the office of the President, Vice President , or Member of Congress. 5 U.S.C. App. §§101(c), (f).

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heterosexual couples and accords a benefit upon homosexual couples.
Accordingly, where there is no rational basis to believe that recognizing or conferring benefits on same-sex married couples will decrease the number of out-of-wedlock births or the incidence of heterosexual marriages, and where the denial of federal marital benefits to same-sex marriages in fact results in a severe and harmful consequence which is directly at odds with the objective sought to be attained, the Court finds that there is no rational relationship between the classification and its objective.
2. Recognizing an Institution to Ensure That Children Have Parents of Both Sexes
BLAG raises a similar argument in defense of Section 3 of DOMA, asserting that Congress could rationally have distinguished between same-sex and opposite-sex marriages in order “to preserve the traditional relationship and not extend it to a group that due to biological differences simply does not raise the same concern about unintended offspring.” [Dkt. #81, p. 52]. BLAG argues that “[t]he general ability of opposite-sex couples not only to procreate but to do so unintentionally is at the heart of the need to incentivize marriage and stable relationships in opposite-sex couples. Couples who can procreate only with considerable pre-meditation raise different issues and Congress rationally could treat those groups differently.” Id. at 50. Additionally, BLAG contends that Congress could rationally have sought to incentivize the rearing of children by opposite-sex

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parents, referencing a host of publications which have concluded that dual-gendered parenting is optimal for child development.
Plaintiffs argue that Section 3 of DOMA bears “no rational or plausible connection to the welfare of children,” as the statute confers marital benefits on childless opposite-sex married couples and denies marital benefits to same-sex married couples who are raising children. [Dkt. #63, p. 44]. Further, Plaintiffs contend that the objective of intending “actively to discourage same-sex couples from having children, based on their perceived unfitness, as a class, to be parents,” must be “subjected to heightened scrutiny because it disparately burdens the fundamental right to decide ‘whether to bear or beget a child.’” Id. at 45 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972)).
The Court finds that Section 3 of DOMA “is at once too narrow and too broad,” to be rationally related to the purported objective of ensuring that children have parents of both sexes. Romer, 517 U.S. at 633. Although the provision results in the conferral of federal marital benefits upon oppositesex married couples who are raising children, the provision also confers benefits upon opposite-sex married couples who have elected not to create or raise children. Moreover, Section 3 of DOMA impacts over a thousand federal statutes and regulations, many of which are entirely unrelated to the notion of rearing children. For example, DOMA prohibits citizens or permanent residents from petitioning for

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their same-sex spouse to be granted permanent resident status, and prohibits same-sex married couples from jointly filing for bankruptcy. See 8 U.S.C. §§ 1101 et seq. and §1151 (b)(2)(A)(i) (providing that United States citizens may petition the Attorney General to classify their spouses as immediate relatives so that the spouse may obtain permanent resident status); 11 U.S.C. §302(a) (Providing, in relevant part, that a joint case is commenced “by the filing with the bankruptcy court of a single petition … by an individual that may be a debtor … and such individual’s spouse.”). This expansive reach of DOMA, affecting a significant number of federal statutes and regulations having no connection to the concept of child-rearing, casts doubt on any purported rational relationship between the statute and dual-gendered parenting. See Romer, 517 U.S. at 632-33 (holding that to withstand rational basis review, a classification must be “narrow enough in scope and grounded in sufficient factual context … to ascertain some relation between the classification and the purpose it serve[s].”).
In addition to DOMA’s expansive scope, depriving the statute of any rational connection to a concern for child welfare, as previously discussed, DOMA does not impede or restrict the ability of same-sex couples to adopt or otherwise raise children. Therefore, “[w]hether or not children raised by opposite-sex marriages are on average better served,” DOMA bears no rational relationship to the purported goal of ensuring that children are reared by opposite-sex parents, as “DOMA cannot preclude

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same sex couples … from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.” Massachusetts, 682 F.3d at 14.
Lastly, if, as BLAG contends, Section 3 of DOMA represents an effort by Congress to provide preferential treatment to opposite-sex marital unions rearing children and conversely to discourage samesex married couples from parenting children pursuant to a belief that same-sex married couples are inferior or inadequate parents, as stated above, it is likely that such an endeavor would amount to the imposition of a burden on same-sex couples’ decision to bear or beget a child, an intrusion on the fundamental right of privacy. See Eisenstadt, 405 U.S. at 453-54 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). However the Court need not definitively address the issue of the fundamental right of privacy, as the Court finds that DOMA’s sweeping scope belies any rational relationship to the purported objective of promoting dual-gendered parenting. Where, as here, the “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.

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3. Defending Traditional Notions of Morality
The House Report proffers the need to “defend traditional notions of morality” as the second purported rational basis for DOMA’s denial of federal marital benefits to same-sex marriages. Explaining the basis for this objective, the House Report finds that “[c]ivil 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 JudeoChristian) morality.” House Report at 15-16. The Report then quotes Henry Hyde, the Chairman of the Judiciary Committee, stating “[s]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people … feel ought to be illegitimate … And in doing so it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval … on a union that many people … think is immoral.” Id. at 16. The Report concludes that “[i]t is both inevitable and entirely appropriate that the law should reflect such moral judgments.” Id.
Although BLAG has not raised the objective of defending traditional notions of morality in support of its motion to dismiss, Plaintiffs have addressed it in their motion for summary judgment. Consequently, in the interest of a providing thorough review of the constitutional question presented, the Court will nonetheless consider whether this objective is rationally related to the classification

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incorporated into the statute to deny same-sex married couples eligibility to receive federal marital benefits.
Contrary to BLAG’s assertion, there is no universal position shared amongst Judeo-Christian faiths regarding the morality of same-sex marriage. Rather, many mainstream Protestant Christian denominations and Reform Jewish communities recognize and perform same-sex marriage ceremonies. See Frances Grandy Taylor, Faithful Split on Accepting Gay Marriage: Religious Opponents Don’t Speak for Everyone, Hartford Courant, March 25, 2003, available at http://articles.courant.com/2003-03-25/features/ 0303250984_1_same-sex-marriage-same-sexceremonies-same-sex-unions (Members of the Unitarian Universalist Society, the First Church of Christ, a community church, and Reform Jewish congregations discuss their support for and performance of same-sex marriage ceremonies). Precisely because of the diverse notions of morality in existence across the country, the Supreme Court has cautioned that the role of the judiciary “is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). It has long been established that “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [ …] are not permissible bases” for singling out a particular group for disparate treatment. Cleburne, 473 U.S. at 448. As the Supreme Court has more recently held, “[m]oral

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disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582.
Accordingly, although the Court acknowledges that disapproval is not always the product of animus, but in fact “may also be the product of longstanding, sincerely held private beliefs,” the Court finds that DOMA’s exclusion of same-sex marriages from both federal recognition and receipt of federal marital benefits as an effort to reinforce principles of morality does not withstand rational basis review. Perry, 671 F.3d at 1093. To hold otherwise would fly in the face of the fundamental principles of religious freedom and liberty upon which this great nation was first colonized and later founded.
4. Preserving Scarce Governmental Resources and Protecting the Public Fisc
As the third of the four objectives sought to be advanced through the enactment of DOMA, as referenced in the House Report, the Judiciary Committee invokes the government’s interest in preserving scarce governmental resources. After noting that “the Committee has not undertaken an exhaustive examination” of the benefits conferred by DOMA, the Report concludes that “it is clear that they do impose certain fiscal obligations on the federal government.” House Report at 18. As the sole example provided, the Report references survivorship benefits paid to the surviving spouse of a veteran of the Armed Services. Id.

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BLAG’s motion to dismiss raises a similar objective, asserting that the Government could have enacted DOMA on the basis of a rational assumption that depriving federal marital benefits to same-sex couples would protect the public fisc. Plaintiffs argue that “DOMA is utterly disconnected from any goal of resource preservation,” in light of a report issued in 2004 by the Congressional Budget Office concluding that “federal recognition of marriages of same-sex couples by all fifty States would result in a net increase in federal revenue.” [Dkt. #63, p. 48]. Additionally, Plaintiffs argue that a concern for preserving government resources alone cannot satisfy rational basis review.

Addressing first the assertion that precluding the

extension of federal marital benefits to same-sex

married couples will preserve government resources,

the Court finds that such assertion has no basis in

reality in light of the Congressional Budget Office’s

June 21, 2004 Report. The Report concluded that the

net effect of federal recognition and conferral of

marital benefits upon same-sex marriages would be

to “improve the budget’s bottom line to a small

extent: by less than $1 billion in each of the next 10

years.” CONGRESSIONAL BUDGET OFFICE, THE

POTENTIAL BUDGETARY IMPACT OF

RECOGNIZING SAME-SEX MARRIAGES, at 1

(June

21,

2004),

available

at

https://www.cbo.gov/sites/default/files/cbofiles/ftpdocs

/55xx/doc5559/06-21-samesexmarriage.pdf. Neither

the House Report nor BLAG’s pleadings present any

evidence to the contrary. This conclusion by the

Congressional Budget Office, in the absence of any

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conflicting evidence, belies any contention that the enactment of DOMA would deplete governmental resources such that the purported goal of preserving governmental resources lacks any “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although the Government need not provide evidence to substantiate a rational basis for a classification, where, as here, the evidence overwhelmingly refutes the Government’s purported objective, such an objective is plainly not grounded in rational speculation, particularly where, as is the case here, the law is extremely broad in scope and no meaningful effort was made to ascertain its fiscal impact. See id. at 320.
Assuming arguendo that evidence existed to support the contention that conferring federal marital benefits upon same-sex married couples would result in increased government expenditures, “more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.” Lyng v. International Union, 485 U.S. 360, 377, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988); see also Plyler, 457 U.S. at 227 (“[A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”).
Accordingly, as the Congressional Budget Office Report precludes any rational speculation that depriving same-sex married couples of federal marital benefits would meaningfully strain or deplete government resources, and where a vague

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generalized concern for public fisc cannot, alone, provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class, the Court finds that a “concern for the public fisc” affords no rational basis for Section 3 of DOMA.
5. Protecting State Sovereignty and Democratic Self-Governance
The final objective referenced in the House Report as a goal sought to be attained by DOMA is the objective of advancing the government’s interest in protecting state sovereignty and democratic selfgovernance. Analogizing to abortion rights, the Report notes that “[t]he Committee is struck by the fact that this entire issue of same-sex ‘marriage,’ like so much of the debate related to matters of sexual morality, is being driven by the courts.” House Report at 16. The Committee articulated the crux of this concern by stating that “what is most troubling in a representative democracy is the tendency of the courts to involve themselves far beyond any plausible constitutionally-assigned or authorized role.” Id. Adopting a statement made by a member of the Hawaii State House of Representatives, the Report posited that “[i]t would indeed be a fundamental shift away from democracy and representative government should a single justice in Hawaii be given the power and authority to rewrite the legislative will of this Congress and of the several states, based upon a fundamentally flawed interpretation of the Hawaii State Constitution.” Id. at 17-18. The Report then summarized the intended role of DOMA in protecting state sovereignty and

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democratic self-governing, explaining that “[b]y taking the Full Faith and Credit Clause out of the legal equation surrounding the Hawaiian situation, Congress will to that extent protect the ability of the elected officials in each State to deliberate on this important policy issue free from the threat of federal constitutional compulsion.” Id. at 17.
To the extent that Congress, through DOMA, sought to eradicate the obligation of states, pursuant to the Full Faith and Credit Clause, to honor marriages obtained legally in another state, this objective therefore pertains to Section 2 of DOMA, the constitutionality of which has not been challenged in the current case. Accordingly, this objective is not relevant to the Plaintiffs’ case.
BLAG invokes a similar concern for democratic self-governance in its motion to dismiss, urging the Court to reserve resolution of the issue of same-sex marriage for Congress and state legislatures. BLAG cautions that it is not the Court’s role “to declare same-sex marriage a constitutional right and eliminate that discussion and resolution;” rather, “Congress and the states are the proper fora for resolving the issue of same-sex marriage.” [Dkt. #81, p. 54].
This argument evinces a fundamental misunderstanding of the role of judicial review and ignores the resounding voices of the Connecticut, New Hampshire, and Vermont constituencies who have, through the democratic process, afforded samesex couples the right to marry. The doctrine of judicial review, a bedrock principle of our system of

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government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803). “The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury,] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.” United States v. Richardson, 418 U.S. 166, 192, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). This role, recognized in Marbury, “has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.” Id. Therefore, contrary to BLAG’s assertion, the Court’s review of the current case is not an inappropriate role, but rather is an exercise of judicial authority long-recognized as a key principle of our government. Moreover, BLAG’s articulated concern for democratic self-governance is curious in that same-sex marriage is the product of democratic self-governance at the state level in Connecticut, Vermont, and New Hampshire. This is a quintessential legislative and democratic question that has been decided by the people of the states of Connecticut, Vermont and New Hampshire.12 BLAG’s concern for democratic
12See supra Section I (B) for a discussion of the history of the legalization of same sex marriage in Connecticut, Vermont, and New Hampshire.

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self-governance also ignores the fact that marriage has historically been the exclusive domain of the states.
Moreover, the “theory and utility of our federalism” is only realized where states “perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” U.S. v. Lopez, 514 U.S. 549, 581, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (Kennedy, J., concurring); see also Rodriguez, 411 U.S. at 50 (“one of the peculiar strengths of our form of government [is] each State’s freedom to serve as a laboratory; and try novel social and economic experiments”) (internal quotation marks and citation omitted). Here, Connecticut, New Hampshire, and Vermont have each fulfilled this promise of federalism by, in effect, serving as a laboratory for experimentation. To the extent that it can be said that DOMA abridges these states’ right to confer marital status on its residents, DOMA can be seen to frustrate the utility and promise of federalism and the democratic process more generally. Accordingly, the Court finds BLAG’s democratic process argument to be curiously misguided and unavailing.
6. Maintaining Consistency and Uniformity with Regard to Eligibility for Federal Benefits and Employing Caution in the Face of a Proposed Redefinition of the Centuries-Old Definition of Marriage
Noting that opposite-sex couples can marry in every American jurisdiction, while same-sex couples have only been afforded the right to marry in a few

113a
states and the District of Columbia, BLAG argues that Congress could have enacted DOMA as a rational attempt to ensure uniform treatment of federal benefits and to avoid the confusion that could arise where a same-sex couple obtains a marriage license in a state where such licenses are legally authorized but resides in a state where same-sex marriage is neither recognized nor permitted. Similarly, BLAG argues that Congress could have rationally enacted DOMA in an effort to proceed with caution in an area of social policy of such great significance. In particular, BLAG suggested that “[a]s an empirical matter, the long-term social consequences of granting legal recognition to samesex marriages remain unknown,” such that Congress “was justified in waiting for evidence spanning a longer term before engaging in what it reasonably could regard as a major redefinition of a foundational social institution.” [Dkt. #81, p. 35].
Plaintiffs dispute the suggestion that DOMA creates consistency, arguing instead that DOMA evokes inconsistency by distinguishing same-sex married couples from opposite-sex married couples for purposes of conferring federal benefits where previously all couples validly married under state law were entitled to such benefits. Rather than affording all married couples the same array of federal benefits, Plaintiffs note that DOMA requires that same-sex married couples receive the same treatment as unmarried same-sex couples. Further, Plaintiffs’ argue that “[i]t is not enough to invoke the novelty of marriages among same-sex couples,” as “even historic discriminatory classifications must

114a
serve some ‘independent and legitimate legislative end.’” [Dkt. #95, p. 21].
Recognizing that “the subject of domestic relations is the exclusive province of the states,” including “the powers to establish eligibility requirements for marriage, as well as to issue determinations of marital status,” which “lie at the very core of such domestic relations law,” the Court finds that DOMA’s exclusion of same-sex marriages from receipt of federal marital benefits bears no rational relationship to the goal of “proceeding with caution” in an area of proposed social change. Gill, 699 F.Supp.2d at 391 (citing Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (noting that “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”)). Categorizing a group of individuals as a “vast untested social experiment” (as BLAG has referred to same-sex married couples, see Dkt. #81, p. 35) to justify their exclusion, albeit purportedly temporary, from federal recognition and benefits until long-term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, if allowed to withstand constitutional scrutiny, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted. Further BLAG’s logic eviscerates states’ rights by nullifying laws adopted through the state democratic process where the will of the citizens is most powerful. Such a rationale

115a
would have justified bans on interracial marriages, “invidious” discriminatory schemes held to be in contravention of the Equal Protection Clause of the Fourteenth Amendment. Loving, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010. Moreover, this rationale is simply a modified articulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits, an objective which the Court has already found to be insufficient to provide a rational basis for DOMA’s classification.
The Court finds that BLAG’s argument regarding uniformity bears no rational relationship to Section 3 of DOMA where DOMA in fact infuses complexity and inconsistency into the conferral of federal marital benefits. Prior to DOMA, federal marital benefits were conferred on any couple validly married under the laws of a state. Through the enactment of DOMA, Congress has inserted an additional criterion, requiring the federal government to identify and exclude all same-sex marital unions from federal recognition. In light of this additional basis for scrutiny, it is irrational to assert that DOMA will in fact simplify the administration of federal marital benefits.
Moreover, the assertion that the legalization of same-sex marriage by certain states will result in the inconsistent distribution of federal marital benefits bears “no footing in the realities” of state marital eligibility requirements. See Heller, 509 U.S. at 321. Prior to the legalization of same-sex marriage by any state, the eligibility requirements for heterosexual

116a
marriages varied pursuant to the laws of each state, for example by age at which individuals may marry without parental consent. By deferring to state laws regarding marriage eligibility, the federal government simply recognized all heterosexual marriages despite these potential differences across states. Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits as all marriages authorized by certain states will receive federal recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits. Therefore, declining to recognize and confer federal marital benefits upon same-sex married couples would in fact insert greater inconsistency into the distribution of federal marital benefits.
BLAG’s incrementalism argument is also unavailing, as DOMA frustrates incrementalism. The adoption of laws at the state level as opposed to the federal level is more incremental and effects change incrementally. The more incremental state processes which DOMA frustrates afford society the opportunity to gather and analyze empirical data and to test the inchoate hypothesis reflected in the studies cited by the Plaintiffs and BLAG in support of their respective positions, the very goal BLAG curiously offers as a rational basis for DOMA. A law which frustrates the very goal it purports to achieve cannot be said to be supported by a rational basis. In consequence, BLAG’s proffered objective of ensuring

117a
the uniform distribution of federal marital benefits bears no rational relationship to Section 3 of DOMA.
IV. Conclusion
In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED, and IntervenorDefendant BLAG’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
/s/ Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 31, 2012

118a Appendix B
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, DAMON SAVOY & JOHN WEISS
V.
OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as
the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his office capacity
as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as the United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED
STATES OF AMERICA
V.

119a
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES

NO. 3:10-CV-1750(VLB)

JUDGMENT

This action having come before the Court on plaintiffs’ motion for summary judgment and defendants’ motions to dismiss, before the Honorable Vanessa L. Bryant, United States District Judge; and

The Court having considered the full record of the case including applicable principles of law, and having issued an order granting the plaintiffs’ motion for summary judgment and denying defendants’ motions to dismiss; it is hereby

ORDERED, ADJUDGED and DECREED that judgment be and hereby is entered in favor of plaintiffs.

Dated at Hartford, Connecticut, this 2nd day of August, 2012.

EOD: 8/2/12

ROBIN D. TABORA, Clerk

By

/s/LL

Loraine LaLone

Deputy Clerk

120a Appendix C
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
_____________________________________ JOANNE PEDERSEN, et al.,
Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants.
No. 3:10-cv-01750-VLB _____________________________________
NOTICE OF APPEAL
Defendants hereby appeal to the United States Court of Appeals for the Second Circuit from the Judgment dated August 2, 2012 (Dkt. No. 118) and the underlying Memorandum of Decision dated July 31, 2012 (Dkt. No. 116). Date: August 17, 2012 Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General

121a
DAVID B. FEIN United States Attorney
ARTHUR R. GOLDBERG Assistant Branch Director
/s/ Judson O. Littleton JUDSON O. LITTLETON [phv04345] Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20530 Tel: (202) 305-8714 Fax: (202) 616-8470
Judson.O.Littleton@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2012, a copy of the foregoing Notice of Appeal was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System.
/s/ Judson O. Littleton JUDSON O. LITTLETON

 </s> No. 12-231
In the Supreme Court of the United States
JOANNE PEDERSEN, ET AL., PETITIONERS v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE OFFICE OF PERSONNEL MANAGEMENT, ET AL.
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
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) de­ fines 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 hus­ band and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a hus­ band 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)

TABLE OF CONTENTS Page
Opinion below ..................................................................................1 Jurisdiction ......................................................................................1 Statement ......................................................................................... 1 Discussion ......................................................................................12 Conclusion ...................................................................................... 14
TABLE OF AUTHORITIES
Cases:
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)...............................2 Baker v. Nelson:
409 U.S. 810 (1972) ...............................................................7 191 N.W.2d 185 (Minn. 1971)..............................................7 Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) ......................7 Lawrence v. Texas, 539 U.S. 558 (2003) ...............................10 Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012) .......................................................................................2 Romer v. Evans, 517 U.S. 620 (1996)....................................10 United States v. Nixon, 418 U.S. 683 (1974) .......................12 Windsor v. United States, Nos. 12-2335, 12-2435, 2012 WL 4937310 (2d Cir. Oct. 18, 2012) .........................12
Constitution and statutes:
U.S. Const.: Art. III ...................................................................................6 Amend. V .............................................................4, 6, 7, 9, 12
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419.........................................................................1
(III)

IV

Statutes—Continued:

Page

§ 2, 110 Stat. 2419 (28 U.S.C. 1738C) ...........................2 § 3, 110 Stat. 2419 (1 U.S.C. 7) ........................... passim Employee Retirement Income Security Act of 1974, 29 U.S.C. 1055(a)(2) ..............................................................3 Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. .............................................................................3 Federal Employees Health Benefits Act, 5 U.S.C. 8901 et seq. .............................................................................3 Internal Revenue Code, 26 U.S.C. 1 et seq.: 26 U.S.C. 401(h) (2006 & Supp. IV 2010) .........................3 26 U.S.C. 420 (2006 & Supp. IV 2010) ...............................3 26 U.S.C. 6013.......................................................................6 26 U.S.C. 7701(p)(1)(3)(Supp. IV 2010) .............................6 Social Security Act, 42 U.S.C. 402(i).......................................3 1 U.S.C. 1 ....................................................................................6 28 U.S.C. 530D ...........................................................................4 28 U.S.C. 1254 ..........................................................................12 28 U.S.C. 1291 ..........................................................................12

Miscellaneous:
Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) .......................................................................12
H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996).............2, 10 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 ...................................................................4, 5

V

Miscellaneous—Continued:

Page

U.S. Gen. Accounting Office, Report No. GAO-04­
353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/assets/100/ 92441.pdf ................................................................................3

In the Supreme Court of the United States
No. 12-231 JOANNE PEDERSEN, ET AL., PETITIONERS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE OFFICE OF PERSONNEL MANAGEMENT, ET AL.
OPINION BELOW
The opinion of the district court (Pet. App. 1a-117a) is not yet reported but is available at 2012 WL 3113883.
JURISDICTION
The judgment of the district court was entered on August 2, 2012. A notice of appeal was filed on August 17, 2012 (Pet. App. 120a-121a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
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 re­ quired to give effect to any public act, record, or judicial
(1)

2
proceeding of another State that treats a relationship between two persons of the same sex as a marriage un­ der 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 pur­ poses 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 le­ gal union between one man and one woman as hus­ band and wife, and the word “spouse” refers only 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 Ha­ waii 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 later recognized such marriages under their respective laws. See Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 6 nn.1 & 2 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012). While Section 3 of DOMA does not purport to invali­ date same-sex marriages in those States that permit them, it excludes such marriages from recognition for purposes of more than 1000 federal statutes and pro­

3 grams 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/assets/100/ 92441.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 ben­ efits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18.
2. Plaintiffs are six same-sex couples married in Con­ necticut, New Hampshire, and Vermont, and one surviv­ ing spouse of a same-sex couple married in Connecticut. First Am. Compl. ¶¶ 37, 39. They filed suit in the United States District Court for the District of Connecticut, al­ leging that, as a result of Section 3, they have been de­ nied certain federal benefits otherwise available to mar­ ried couples or surviving spouses. Id. ¶ 11. Those bene­ fits include federal health plan benefits for spouses of federal employees, see 5 U.S.C. 8901 et seq., social secu­ rity benefits for surviving spouses of insured individu­ als, see 42 U.S.C. 402(i), defined benefit pension plan benefits for spouses and surviving spouses of plan par­ ticipants, see 26 U.S.C. 401(h), 420; 29 U.S.C. 1055(a)(2), federal leave benefits for covered individuals caring for spouses with serious health conditions, see 29 U.S.C. 2601 et seq., and married joint-filer status for federal in­ come tax purposes. First Am. Compl. ¶¶ 6-10. Plaintiffs contend that, by treating married same-sex couples dif­ ferently from married opposite-sex couples, Section 3 violates the right of equal protection secured by the Fifth Amendment. Id. ¶ 11. They seek declaratory and injunctive relief. Ibid.

4 3. After plaintiffs filed their complaint, the Attorney General sent a notification to Congress pursuant to 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 where binding circuit precedent required application of rational basis review to classifications based on sexual orientation, the Presi­ dent and the Department of Justice had conducted an examination of the issue after two suits (this one and Windsor v. United States, petitions for cert. before judgment pending, Nos. 12-63 (filed July 16, 2012) and 12-307 (filed Sept. 11, 2012)) had been filed in a circuit that had yet to address the appropriate standard of re­ view. Attorney General Letter 1-2. The Attorney Gen­ eral explained that, after examining factors this Court has identified as relevant to the applicable level of scru­ tiny, including the history of discrimination against gay and lesbian individuals and the relevance of sexual ori­ entation to legitimate policy objectives, he and the Pres­ ident 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 heightened scrutiny and is therefore unconstitu­ tional. Id. at 4-5.
1 3:10-cv-01750 Docket entry No. 39 (D. Conn. Feb. 25, 2011). Text also available at http://www.justice.gov/opa/pr/2011/February/ 11-ag- 223.html.

5 The Attorney General’s letter reported that, notwith­ standing this determination, the President had “in­ structed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s ob­ ligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judi­ cial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The At­ torney 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 arbi­ ter of the constitutional claims raised.” Ibid. In the in­ terim, the Attorney General instructed the Depart­ ment’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Depart­ ment’s lawyers would take appropriate steps to “pro­ vid[e] Congress a full and fair opportunity to partici­ pate” in litigation concerning the constitutionality of Section 3. Id. at 6. Following the Attorney General’s announcement, re­ spondent Bipartisan Legal Advisory Group of the Unit­ ed States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to inter­ vene to present arguments in defense of the constitu­ tionality of Section 3.2 The district court granted the motion. 5/27/11 Order. Both BLAG and the government moved to dismiss plaintiffs’ challenge to the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss plaintiffs’ constitutional claim solely for purposes of ensuring that the court had
2 Two of the group’s five members declined to support intervention. BLAG Mot. to Intervene 1 n.1 (Apr. 26, 2011).

6 Article III jurisdiction to enter judgment for or against the federal officials tasked with enforcing Section 3. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 of DOMA and that, under that standard of review, Section 3 vio­ lates the equal protection guarantee of the Fifth Amend­ ment. Gov’t Resp. to Pl. Mot. for Summ. J. and Inter­ venor’s Mot. to Dismiss 8-34 (Sept. 14, 2011).
4. The district court denied the motions to dismiss and granted summary judgment in favor of plaintiffs, concluding that Section 3 of DOMA violates the equal protection guarantee of the Fifth Amendment. Pet. App. 1a-117a.
a. As a preliminary matter, the district court reject­ ed BLAG’s argument that plaintiffs who claim that Sec­ tion 3 prohibited them from filing federal income tax re­ turns as married joint filers lack Article III standing because the statute governing married joint filers, 26 U.S.C. 6013, does not extend by its own terms to mar­ ried same-sex couples. Pet. App. 20a-24a. While ac­ knowledging that Section 6013 uses the terms “hus­ band” and “wife,” the court explained that when used in federal statues generally and the Tax Code specifically, those terms are presumptively gender-neutral. Id. at 21a-22a (citing 1 U.S.C. 1; 26 U.S.C. 7701(p)(1)(3)). The district court concluded, moreover, that Section 3 of DOMA, not Section 6013 of the Tax Code, caused plain­ tiffs’ alleged injury: Section 3 “was the reason the IRS no longer deferred to state law and instead denied samesex couples who were validly married under state law the ability to file joint tax returns.” Id. at 23a.
b. The district court also rejected BLAG’s threshold argument that plaintiffs’ equal protection challenge is foreclosed by this Court’s summary dismissal for want

7 of a substantial federal question 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, 185-187 (1971). Pet. App. 24a-27a. After noting the “limited precedential value” of summary dismissals, id. at 24a, the court explained that, unlike in Baker, “the issue of whether there is a consti­ tutional right to same-sex marriage is not present” in this case because plaintiffs “are validly married under state law,” id. at 26a. The district court concluded therefore that Baker “is clearly unrelated” to the ques­ tion whether Section 3 violates the equal protection guarantee of the Fifth Amendment. Ibid.
c. Turning to the constitutionality of Section 3, the district court determined that laws drawing distinctions on the basis of sexual orientation are subject to height­ ened scrutiny. Pet. App. 30a-86a. The court first con­ cluded that the appropriate level of scrutiny was an open question in the Second Circuit, noting that this Court and the Second Circuit “have not had occasion to squarely address it.” Id. at 33a. The district court de­ clined to follow opinions from other circuits applying ra­ tional basis review because most relied on Bowers v. Hardwick, 478 U.S. 186 (1986), since overruled by Lawrence v. Texas, 539 U.S. 558 (2003), Pet. App. 34a-36a; gave only “cursory consideration to the suspect class analysis,” id. at 34a; or involved “challenges to military policy on homosexual conduct,” which the district court viewed as “distinguishable from challenges within the civilian context,” id. at 36a.
The district court then considered the factors this Court has assessed in determining whether to apply

8 heightened scrutiny to laws drawing distinctions on the basis of a particular classification. Pet. App. 39a-86a. The court first examined the history of discrimination against the class. Id. at 40a-49a. The court found that “the evidence in the record detailing the long history of anti-gay discrimination which evolved from conductbased proscriptions to status or identity-based proscrip­ tions perpetrated by federal, state and local govern­ ments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidi­ ous discrimination”—a history “widely acknowledged in American jurisprudence, including United States Su­ preme Court jurisprudence.” Id. at 47a, 49a.
The district court then examined whether the distin­ guishing class characteristic indicates a typical class member’s ability to contribute to society. Pet. App. 49a­ 53a. The court noted that “BLAG’s argument fails to address and therefore apparently concedes that this fac­ tor is met.” Id. at 50a. Nevertheless, the district court pointed to the societal contributions of gays and lesbi­ ans, ibid., “the long-held consensus of the psychological and medical community,” ibid., and other evidence to determine that sexual orientation “is not a distinguish­ ing characteristic like mental retardation or age which undeniably impacts an individual’s capacity and ability to contribute to society,” id. at 53a. Instead, the district court found that “like sex, race, or illegitimacy, homo­ sexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Ibid.
Next, the district court assessed whether the distin­ guishing class characteristic is immutable, Pet. App. 54a-69a, determining that “the key inquiry is whether sexual orientation is enduring or resistant to change af­

9 ter its development or emergence in adolescence,” id. at 59a. Relying on the apparent “consensus in the scien­ tific community,” id. at 55a (citation omitted), “the in­ creasing recognition that sexual orientation is funda­ mental and central to one’s identity,” id. at 66a, and oth­ er evidence, the court concluded that sexual orientation “should be considered immutable,” id. at 69a. “To hold otherwise,” the court explained, “would penalize individ­ uals for being unable or unwilling to change a funda­ mental aspect of their identity.” Ibid.
Finally, the district court looked to the class’s politi­ cal power. Pet. App. 69a-86a. The court acknowledged that gays and lesbians have had “some modest successes in mitigating existing discrimination.” Id. at 83a. Rely­ ing on evidence demonstrating that gays and lesbians “are legally discriminated against in a variety of ways,” id. at 72a, and “are underrepresented in political office,” ibid., however, the court concluded that they “lack meaningful political power sufficient to satisfy this fac­ tor,” id. at 84a.
Having assessed what it considered the relevant fac­ tors, the district court determined that “homosexuals display all the traditional indicia of” a suspect or quasisuspect class. Pet. App. 84a. The court accordingly held that laws drawing distinctions on the basis of sexual ori­ entation are subject to heightened scrutiny. Ibid.
d. To assess the constitutionality of Section 3, the district court nevertheless applied rational basis review. Pet. App. 86a-117a. The court reasoned that this Court has opted “to apply rational basis review rather than de­ finitively address whether sexual orientation constitutes a suspect or quasi-suspect class.” Id. at 86a.
The district court held that Section 3 violates the Fifth Amendment’s guarantee of equal protection. Pet.

10 App. 86a. The court concluded that neither the legisla­ tive purposes articulated in support of Section 3 at the time of its enactment (see 1996 House Report 12) nor additional interests offered by BLAG bear a rational re­ lationship to a legitimate governmental objective. Id. at 89a-117a.
The district court first could discern “no rational re­ lationship” between Section 3 and an asserted federal governmental interest in defending and nurturing the institution of heterosexual marriage. Pet. App. 93a. The court explained that, among other problems, “[b]y excluding a same-sex spouse from [certain] ethical obli­ gations and financial disclosure requirements, Section 3 of DOMA illogically burdens heterosexual couples and accords a benefit upon homosexual couples.” Id. at 99a­ 100a (citing various disclosure requirements involving spouses of federal officials). The court also rejected BLAG’s argument that Congress might have enacted Section 3 with the “objective of ensuring that children have parents of both sexes.” Id. at 101a. The court rea­ soned that Section 3 “is at once too narrow and too broad” to be rationally related to that objective, ibid. (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)), be­ cause Section 3 “does not impede or restrict the ability of same-sex couples to adopt or otherwise raise chil­ dren,” id. at 102a, and “confers [federal marital] benefits upon opposite-sex married couples who have elected not to create or raise children,” id. at 101a.
Next, the district court concluded that the asserted federal governmental interest in defending traditional notions of morality cannot withstand rational basis re­ view. Pet. App. 106a. “[M]oral disapproval of [a] group,” the court reasoned, “is an interest that is insuf­ ficient.” Id. at 105a-106a (quoting Lawrence, 539 U.S. at

11 582 (O’Connor, J., concurring in the judgment)). The court also determined that “the government’s interest in preserving scarce governmental resources” alone cannot “provide a rational basis for both depriving benefits to and saddling a financial burden on a particular class.” Id. at 106a, 109a.
Turning to “the objective of advancing the govern­ ment’s interest in protecting state sovereignty and dem­ ocratic self-governance,” Pet. App. 109a, the district court explained that “same-sex marriage is the product of democratic self-governance at the state level in Con­ necticut, Vermont, and New Hampshire,” id. at 111a. The court therefore concluded that Section 3 itself “can be seen to frustrate the utility and promise of federalism and the democratic process” to the extent it “abridges these states’ right to confer marital status on [their] res­ idents.” Id. at 112a.
The district court also rejected BLAG’s argument that “Congress could have rationally enacted [Section 3] in an effort to proceed with caution in an area of social policy of such great significance.” Pet. App. 113a. That rationale, the court found, “is simply a modified ar­ ticulation of the assertion that preservation of tradition can justify the use of a legislative classification to deny governmental benefits,” an assertion already deemed insufficient by the district court. Id. at 115a. Finally, the court determined that Section 3 does not advance an asserted federal governmental interest in maintaining consistency and uniformity in federal benefits because Section 3 “in fact infuses complexity and inconsistency” into that realm by “requiring the federal government to identify and exclude all same-sex marital unions from federal recognition.” Ibid.

12
5. Both the government and BLAG filed timely no­ tices of appeal to the United States Court of Appeals for the Second Circuit. Pet. App. 120a-121a. The court of appeals has jurisdiction pursuant to 28 U.S.C. 1291. The appeals were docketed as No. 12-3273 and No. 12-3872, and remain pending before that court. The case is therefore “in the court[] of appeals” within the meaning of 28 U.S.C. 1254. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 83-84 (9th ed. 2007) (cit­ ing United States v. Nixon, 418 U.S. 683, 690-692 (1974)).
6. On September 11, 2012, after plaintiffs filed this petition, the government filed its own petition for a writ of certiorari before judgment in this case (No. 12-302).
DISCUSSION
The question whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection as ap­ plied to same-sex couples legally married under state law is presented in the government’s petition for a writ of certiorari in United States Department of Health & Human Services v. Massachusetts, No. 12-15 (filed July 3, 2012),3 and in the government’s petition for a writ of certiorari before judgment in Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). The question is also presented in the government’s petition for a writ of certiorari before judgment in United States v. Windsor, No. 12-307 (filed Sept. 11, 2012).4 For the
3 Two other petitions for a writ of certiorari have been filed in the Massachusetts case, one by BLAG (No. 12-13) and a conditional cross-petition by the Commonwealth of Massachusetts (No. 12-97).
4 On October 18, 2012, the Second Circuit in Windsor issued a deci­ sion applying intermediate scrutiny to hold that Section 3 violates equal protection. 2012 WL 4937310. The government plans to take

13 reasons explained in those pending petitions, that ques­ tion warrants this Court’s review now.
In the event the Court determines that Massachusetts, Windsor, and Golinski do not provide an appro­ priate vehicle to decide the question presented, it should grant review in this case to ensure a timely and defini­ tive ruling on Section 3’s constitutionality. As in the re­ cent court of appeals opinion in Windsor (see note 4, supra) and the district court’s decision in Golinski, the district court’s consideration of the applicable level of scrutiny in this case (Pet. App. 32a-86a) may material­ ly assist this Court’s consideration of that issue. See No. 12-16 Pet. 13.
As explained in the government’s response in No. 12­ 63 (at 17-19) and in the government’s petition (No. 12­ 302) in this case (at 14), plaintiffs’ petition raises a threshold question about whether plaintiffs, who ob­ tained a district court judgment and decision entirely in their favor, have standing to independently seek certio­ rari before judgment. As further explained in those fil­ ings (No. 12-63 Gov’t Resp. 19-20; No. 12-302 Pet. 14 & n.4), however, the government’s filing of a petition in this case obviates any need for this Court to resolve that threshold question if it is inclined to grant review in this case.
further steps to seek this Court’s review in Windsor in light of that decision.

14
CONCLUSION
The Court should hold the petition for a writ of certi­ orari before judgment pending its consideration of the petitions in Department of Health and Human Services v. Massachusetts, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), United States v. Windsor, Nos. 12-63 (filed July 16, 2012) and 12-307 (filed Sept. 11, 2012), and Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). If the Court does not grant review in Massachusetts, Windsor, or Golinski, the Court should grant the gov­ ernment’s petition for a writ of certiorari before judg­ ment in this case (No. 12-302) and, in that event, grant this petition in conjunction therewith.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
OCTOBER 2012

 </s> No. 12-231

In The
Supreme Court of the United States
________________
JOANNE PEDERSEN, ET AL., Petitioners,
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of App_e_a__ls__f_o_r__th__e__S_e_cond 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 MICHAEL H. MCGINLEY

Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

ELENI M. ROUMEL

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

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “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.” 1 U.S.C. § 7.
The question presented is:
Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?

ii
PARTIES TO THE PROCEEDING
Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) was the intervenor-defendant in the district court and is an appellant in the Second Circuit.∗
Respondents the Office of Personnel Management, Timothy F. Geithner, Secretary of the Treasury, Hilda L. Solis, Secretary of Labor, Michael J. Astrue, Commissioner of the Social Security Administration, the United States Postal Service, Patrick R. Donahoe, Postmaster General of the United States of America, Douglas H. Shulman, Commissioner of Internal Revenue, Eric H. Holder, Jr., Attorney General, Thomas J. Curry, Comptroller of the
∗ 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, like the institution it represents, functions on a majoritarian basis 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
Currency, and the United States of America were defendants in the district court and are appellants in the Second Circuit.
Petitioners Joanne Pedersen, Ann Meitzen, Gerald V. Passaro II, Lynda DeForge, Raquel Ardin, Janet Geller, Joanne Marquis, Suzanne Artis, Geraldine Artis, Bradley Kleinerman, James Gehre, Damon Savoy, and John Weiss were plaintiffs in the district court and are appellees in the Second Circuit.

iv
TABLE OF CONTENTS QUESTION PRESENTED ......................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ...................................... v INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 1 1. The Defense of Marriage Act .............................. 1 2. The Justice Department’s About-Face and
the House’s Intervention .................................... 5 3. History of This Case............................................ 6
a. Procedural History ....................................... 6 b. The District Court’s Decision ....................... 7 c. Second Circuit Proceedings ......................... 9 4. Other Pending Petitions Involving DOMA Section 3 ............................................................ 10 REASONS FOR DENYING THE WRIT ................. 12 I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality. ............. 13 II. Standing Issues and Vehicle Problems Counsel Against Granting This DOMA Petition. ............................................................. 14 III. Certiorari in This Case Would Expedite Neither This Court’s Review of DOMA nor the Resolution of Petitioners’ Claims. .............. 18 IV. The Record in This Case Is Less Developed Than That in Gill. ............................................. 19 CONCLUSION ......................................................... 21

v
TABLE OF AUTHORITIES
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ...................... 4
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ..................................... 3
Baker v. Nelson, 409 U.S. 810 (1972) ............................................. 8
Balogun v. U.S. Att’y Gen., 425 F.3d 1356 (11th Cir. 2005) ......................... 15
Camreta v. Greene, 131 S. Ct. 2020 (2011) ....................................... 17
Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) ......................................... 12
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) .................................... 5
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ........................................... 17
Galindo-Del Valle v. Att’y Gen., 213 F.3d 594 (11th Cir. 2000) ........................... 15
Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012) ............... 11
Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005)........... 5
INS v. Chadha, 462 U.S. 919 (1983) ........................................... 17
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................... 15

vi
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) ............................. 2, 11
McConnell v. FEC, 540 U.S. 93 (2003) ............................................. 15
Murphy v. Ramsey, 114 U.S. 15 (1885) ............................................... 5
Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (9th Cir. 2006) ............................. 15
Renne v. Geary, 501 U.S. 312 (1991) ........................................... 15
S.D. Myers, Inc. v. City & Cnty. of San Francisco, 253 F.3d 461 (9th Cir. 2001) ........... 15
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part & vacated in part for lack of standing, 447 F.3d 673 (9th Cir.), cert. denied, 549 U.S. 959 (2006) ........................ 5
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ......... 5
Transp. Workers of Am., AFL-CIO v. TSA, 492 F.3d 471 (D.C. Cir. 2007) .............. 15
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
Constitutional Provisions
U.S. Const. art. II, § 3 ................................................ 5
Statutes
1 U.S.C. § 1 ............................................................... 15
1 U.S.C. § 7 .............................................................. i, 2

vii
5 U.S.C. § 8101 ........................................................... 4 5 U.S.C. § 8341(a)....................................................... 4 8 U.S.C. § 1186a(b)(1) ................................................ 4 28 U.S.C. § 2107(b)................................................... 10 38 U.S.C. § 101(31)..................................................... 4 42 U.S.C. § 1382c(d)(2)............................................... 4 42 U.S.C. § 416 ........................................................... 4 I.R.C. § 2(b)(2) ............................................................ 4 I.R.C. § 7703(b)........................................................... 4 Revenue Act of 1921, § 223(b), 42 Stat. 227.............. 4 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) .............................................................. 4 Regulations & Rules U.S. Dep’t of Labor, Final Rule, The Family And 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

INTRODUCTION
Petitioners have filed the latest in a series of extraordinary Petitions for a Writ of Certiorari Before Judgment seeking review of DOMA’s constitutionality. The Petitions are extraordinary both for the relief they seek, certiorari before judgment, and because they are totally unnecessary. The important issue of the constitutionality of Section 3 of DOMA is squarely presented to this Court in the earlier-filed Petition for Certiorari after judgment in No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. That Petition comes in the ordinary course following the judgment and opinion of the Court of Appeals for the First Circuit. There is no reason to take the extraordinary step of granting certiorari before judgment here when the exact same issue is better presented in a pending petition for certiorari after judgment.
Accordingly, the Court should grant the House’s Petition in No. 12-13, and deny the instant Petition and allow the Second Circuit to determine how best to proceed in light of this Court’s consideration of Gill.
STATEMENT OF THE CASE
1. 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.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012). The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14

2
to do so. See 142 Cong. Rec. 17094-95 (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 opinion of the Department of Justice (“the Department”) on the bill’s constitutionality, and the Department three times 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 The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. at 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. 87-117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch)

3
(DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 2341 (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, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage, see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), 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, contrary to Petitioners’ suggestion, see Pet. 3-4, pre-1996 Congresses did not regard themselves as powerless to define marriage for purposes of federal law. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law 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.1 Indeed, far from “amend[ing] the
1 See, 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

4
eligbility criteria for [marital] benefits” and duties, Pet. 6, in enacting DOMA Congress merely reaffirmed what it has always meant when using the words “marriage” and “spouse” in federal law—and what courts and the executive branch have always understood it to mean: A traditional male-female couple.2 It further clarified its understanding that
purposes); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 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 social-security 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).
2 See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return); cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); 38 U.S.C. § 101(31) (“The term ‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family And 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 “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), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”); see also Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (referring to “the union for life of one man and one woman in the holy estate of

5
these terms would have that meaning for purposes of federal law regardless of how states might choose to redefine marriage for purposes of their own law.3
2. 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.4 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. Letter from Att’y Gen.
matrimony” as “the sure foundation of all that is stable and noble in our civilization”).
3 See House Rep. 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); id. at 30 (“Section 3 merely restates the current understanding of what those terms mean for purposes of federal law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”).
4 See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part & vacated in part for lack of standing, 447 F.3d 673 (9th Cir.), cert. denied, 549 U.S. 959 (2006); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

6
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 heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
In order to prevent an Act of Congress from going undefended before the courts, the House sought and received leave to intervene as a party-defendant in the various DOMA cases nationwide, including in Gill and in this case.
3. History of This Case
a. Procedural History
Petitioners are a number of same-sex couples who have obtained marriage certificates from states that offer such certificates to same-sex couples, and

7

surviving members of such couples. They seek to enjoin DOMA and to obtain federal benefits available to opposite-sex married couples.

Petitioners’ suit was filed before the Department ceased defending DOMA, and the district court allowed Petitioners a period of more than four months to move to dismiss. Pretrial Deadlines Order & Sched. Order, Pedersen, No. 10-cv-1750 (D.Conn. Nov. 9, 2010 & Jan. 6, 2011). Instead of filing such a motion, however, the Department ultimately notified the court that it would not defend DOMA’s constitutionality against equal-protection attack, Notice to Ct., id. (D. Conn. Feb. 25, 2011), and the House sought and was granted leave to intervene. See Order, id. (D. Conn. May 27, 2011).

The district court entered an unusual scheduling order under which Petitioner would move for summary judgment before the House could move to dismiss the complaint. Sched. Order at 2, id. (D. Conn. May 27, 2011).

b. The District Court’s Decision

The dispositive motions were fully briefed and

pending before the district court for nine and one

half months before the district court issued its

decision.

Ultimately, without hearing oral

argument, the district court granted Petitioners’

motion for summary judgment and denied the

House’s motion to dismiss. The court first addressed

a threshold question of standing regarding

Petitioners’ claims to file joint income tax returns,

holding that the tax code is “gender neutral” despite

its specification that joint tax returns may be filed by

“a husband and wife,” and thus that Petitioners had

8
standing to seek joint tax returns by challenging DOMA but not the tax-code provision itself. App. 22a, 21a. The court also concluded that Petitioners’ ineligibility for joint tax returns is defined solely by DOMA and not by the tax code, because the IRS sent letters to some of the Petitioners that, in the court’s view, stated as much. App. 22a-24a.
The district court then found this Court’s decision upholding traditional marriage laws in Baker v. Nelson, 409 U.S. 810 (1972), to be inapplicable, in part on the ground that in that case this Court had decided only “a state constitutional question while this case presents a United States constitutional question.” App. 26a.
Turning to the question of the proper level of constitutional scrutiny for classifications based on sexual orientation—an issue that the Second Circuit has not yet addressed—the district court expressed the view that heightened scrutiny would apply, App. 84a, but found that it “need not apply a form of heightened scrutiny” because, in the court’s view, DOMA fails rational-basis review. App. 86a.
In purporting to apply rational-basis review, however, the district court wholly inverted the burden of proof. It held that Congress could not rationally proceed with caution in the face of the unknown consequences of changing a foundational social institution, because that would be “permitting discrimination [to continue] until equal treatment is proven * * * to be warranted,” which the court found unacceptable. App. 114a. The court also declared it irrational for Congress to desire a policy of nationwide uniformity in marital benefits eligibility for same-sex couples, rather than a uniform policy of

9
deference to state law. App. 115a-116a. The district court concluded that DOMA is not rationally related to conserving government funds because even though the plaintiffs sought additional benefits, the court believed, recognizing same-sex marriages would result in a net transfer of wealth away from same-sex couples and to the government. App. 107a108a. It also found that saving money is not a legitimate state interest unless there is some further justification for how the money is saved. App. 108a.
The court also stated that DOMA cannot rationally be thought to foster responsible childrearing because it does not permit every couple that is allowed to raise children to marry each other for purposes of federal law, does not require married couples to have children, and does not prohibit same-sex couples from raising children. App. 96a-98a, 101a-102a. The district court suggested that Congress may not conclude that it is best for children to be raised by married couples unless it is willing to accept whatever definition of “married” the states might choose to adopt. App 98a-99a.
The court also expressed its belief that, “by relieving homosexual couples of legal obligations imposed on heterosexual couples,” DOMA “disincentivizes heterosexual marriage.” App. 99a. The court found DOMA not rationally related to childrearing because the court believed that some marital benefits and duties are not related to children. App. 101a-103a.
c. Second Circuit Proceedings
Although the district court adopted the result advocated by the Department, the Department

10
nonetheless filed a Notice of Appeal to the Second Circuit on August 17, 2012—only 15 days after the district court entered judgment, and 45 days before the deadline for filing a notice of appeal. See 28 U.S.C. § 2107(b). Petitioners filed the instant Petition only four days later, August 21, 2012, and on that same day moved in the Second Circuit for a highly expedited schedule. See Mot. for Expedited Appeal, Pedersen, No. 12-3273 (2d Cir. Aug. 21, 2012). That motion was denied. Order, id. (2d Cir. Aug. 28, 2012). Petitioners never filed their own appeal for the rather obvious reason that they prevailed in the district court.
The House filed its own Notice of Appeal to the Second Circuit on September 28, 2012. The two appeals apparently are being treated as consolidated in the Second Circuit. See Nos. 12-3273 & 12-3872 (2d Cir.). The House has moved to dismiss the Department’s appeal on grounds that the Department lacks appellate standing and that its appeal is superfluous, Mot. to Dismiss, id. (2d Cir. Oct. 4, 2012), but no merits briefing on DOMA’s constitutionality has been filed.
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality is also presented by seven other petitions for certiorari pending before this Court. Three petitions arise out of the First Circuit’s decision and judgment in Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012). The others are petitions for certiorari before judgment following appeals of district court judgments striking down DOMA on equal protection grounds—one by

11
the Department in this case, one by the Department in Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2012), and petitions by both the plaintiff and the Department in Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012).
The House filed a Petition for Certiorari in the First Circuit case on June 29, 2012. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. No party opposes the House’s Gill Petition. A few days later, the Department filed its own Petition in that case, No. 12-15 (July 3, 2012), despite having its bottomline position on DOMA adopted in that case. On July 20, Massachusetts filed a Conditional CrossPetition for Certiorari in the First Circuit case, No. 12-97; both Massachusetts and the individual Gill plaintiffs support this Court’s review in Gill. Resp. of the Commonwealth of Mass. in Supp. of Cert., Nos. 12-13 & 12-15 (July 20, 2012); Br. in Resp. of Nancy Gill et al., Nos. 12-13 & 12-15 (Aug. 2, 2012).
Similarly, the Department filed a Petition for a Writ of Certiorari Before Judgment in Golinski, No. 12-16 (July 3, 2012), despite prevailing below—an action subsequently duplicated by the PlaintiffPetitioner in Windsor, see No. 12-63, and Petitioners here. The Department then filed its own Petitions in the latter cases as well. See Nos. 12-302 & 12-307.5 The Department does not unequivocally support
5 On October 18, the day before this Brief was filed, a divided panel of the Second Circuit affirmed the judgment of the district court in Windsor. Whether the Windsor Petitions are now treated as coming before or after judgment, it remains the case that the parties seeking review are the ones who prevailed in the lower courts.

12
plenary review in either this case or Windsor, but merely requests that the Court hold those Petitions for review in the event it denies the writ in the other DOMA cases.
REASONS FOR DENYING THE WRIT
A grant of certiorari before judgment in the Court of Appeals “is an extremely rare occurrence.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers). This Court’s Rule 11 provides that such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
This case does not remotely satisfy that standard. Although the issue of DOMA’s constitutionality is indeed a matter of great public importance, particularly given the confrontation between the House and executive branch engendered by the Department’s actions in this litigation, that issue has already been brought before this Court by “normal appellate practice”—in the form of the House’s Petition after decision and judgment in Gill, a case in which the House, Department, Massachusetts, and the individual plaintiffs all agree that certiorari is appropriate. Thus, there is nothing “to justify deviation from normal appellate practice” in this case.
Instead, granting the writ here would result only in unnecessary duplication and confusion. Not only is there no justification for taking the extraordinary step of granting certiorari before judgment when the exact same issue is squarely presented in an earlier-

13
filed petition for certiorari after judgment, but this case features vehicle problems not present in Gill. As explained more fully in the House’s opposition in No. 12-15—and as the Department agrees—it is not clear that Petitioners, who prevailed in district court and thus could not and did not file an appeal, even have appellate standing to petition. While appellate standing principles may apply differently in the certiorari before judgment context, the fact that Petitioners were the prevailing parties would complicate the briefing and argument and is at least a prudential consideration counseling against certiorari.
Under these circumstances, the House’s Gill Petition is the superior vehicle for review of DOMA’s constitutionality by this Court. The Court can avoid all of the side issues presented by this case and focus on the important question of DOMA’s constitutionality by granting the House’s Petition in No. 12-13, and denying the Petition in this case.
I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality.
The question presented by the instant Petition regarding DOMA is identical to the House’s Question 1 in Gill. Compare Pet. i with Pet. No. 1213 at i.6 In its Gill opinion, the First Circuit passed on exactly the same question as the district court here: Whether DOMA is compatible with the Fifth Amendment’s implicit guarantee of equal protection. Likewise, the sub-issues addressed by the two courts were the same: Both cases focused on the proper
6 The Department’s Petition in Gill also presents that same question. See Pet. No. 12-15 (I).

14
level of constitutional scrutiny to apply, and the government interests supporting DOMA considered by the two courts were virtually identical. Thus, there is no aspect of the issues that would be presented in this case as to DOMA’s constitutionality that the Court could not address as easily (or more easily) in Gill instead.
Petitioners do not really appear to suggest otherwise. Contrary to their sole suggestion on this score, Pet. 29, this is not a situation in which there is any particular need to grant certiorari in a case or cases presenting varied applications of a challenged statute. DOMA’s constitutionality is a straight upor-down proposition that will not vary by context: No party or court has yet contended or concluded that DOMA might be constitutional only in some situations or only as applied to some plaintiffs. Indeed, Petitioners themselves suggest that DOMA’s across-the-board nature and lack of contextspecificity are part and parcel of its constitutional difficulty. Pet. i, 3-5, 6-7, 27, 29.
II. Standing Issues and Vehicle Problems Counsel Against Granting This DOMA Petition.
Petitioners suggest that DOMA’s application is somehow presented in especially sharp relief by their case, such that “all the harms caused to [them] are clearly and solely the consequence of the application of DOMA.” Pet. 29. Even were this true, it would not distinguish this case from Gill. But it is not true. Indeed, some of the Petitioners here not only do not suffer harm “solely” from DOMA, but also have created questions about their own standing by failing to challenge provisions of the Internal

15
Revenue Code that employ language specific to opposite-sex married couples.
Many of the Petitioners seek to file joint federal income tax returns, and it is very far from “clear[]” that DOMA is the “sole[]” statutory barrier to that outcome. The applicable tax statute, I.R.C. § 6013(a), also precludes same-sex couples from filing jointly because it expressly provides that “[a] husband and wife may make a single return jointly of income taxes.” Because Petitioners have not challenged the constitutionality of § 6013(a), there is a serious question whether their claimed income-tax injuries would even be redressed if DOMA were struck down as they request, or whether § 6013(a) would independently bar the relief they seek—and thus whether they have standing to pursue those claims. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-562 (1992).7
The district court relied on the provisions of the Dictionary Act, 1 U.S.C. § 1, and the tax code providing that masculine terms include the feminine to conclude that the terms “husband and wife” should be read as “gender neutral.” App. 22a. But
7 See McConnell v. FEC, 540 U.S. 93, 228-229 (2003) (decision striking down challenged portions of BCRA would not redress plaintiffs’ injuries because parallel provisions of FECA were not before the Court); Renne v. Geary, 501 U.S. 312, 319 (1991) (similar); see also Galindo-Del Valle v. Att’y Gen., 213 F.3d 594, 598 (11th Cir. 2000), superseded by statute on other grounds as stated in Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1359 (11th Cir. 2005); cf. Transp. Workers of Am., AFL-CIO v. TSA, 492 F.3d 471, 475-476 (D.C. Cir. 2007); Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941, 955 (9th Cir. 2006); S.D. Myers, Inc. v. City & Cnty. of San Francisco, 253 F.3d 461, 474-476 (9th Cir. 2001).

16

this conclusion is far from obvious. Section 6013(a)’s use of the terms husband and wife in contradistinction from each other strongly suggests a reference to opposite sex married couples, which would negate any inference that the terms could be read to be gender-neutral.

There is a further complication with the District Court’s invocation of the Dictionary Act. The Dictionary Act provides only that the masculine includes the feminine, not vice versa. Thus, if read literally, the Dictionary Act would suggest, at most, that two women with a marriage certificate could file a joint tax return but two men could not. That nonsensical result strongly suggests that while the Dictionary Act was meant to address antiquated uses of male-specific references, it was not intended to override gender-specific references to terms like mother and wife, let alone override a specific reference to opposite-sex couples, such as § 6013(a)’s reference to a husband and wife.

The far better reading of § 6013(a) is that its

reference to “husband” and “wife” independently

limits joint filing status to opposite-sex married

couples. At a minimum, it was imprudent for

Petitioners to challenge DOMA without also

challenging § 6013(a), as that tactical judgment has

called their standing into question. And no matter

how this Court would ultimately resolve these case-

specific and largely self-inflicted issues, there is no

reason for this Court to invite those extra

complications

in

considering

DOMA’s

constitutionality by granting certiorari before

judgment here, when Gill comes to it after judgment

and presents no such wrinkles.

17
Additionally, and as the Department correctly notes in its own Petition in this case, the fact that Petitioners prevailed in the district court raises serious questions as to whether they have appellate standing to seek this Court’s review. As the House has explained more fully in its Brief in Opposition in No. 12-15, one of the basic rules of federal procedure is that “a party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” INS v. Chadha, 462 U.S. 919, 930 (1983) (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (brackets omitted)).
Two Terms ago this Court made clear that the same principle applies to its certiorari jurisdiction. Camreta v. Greene, 131 S. Ct. 2020, 2030-33 (2011). As a result, “[a]s a matter of practice and prudence, [this Court has] generally declined to consider cases at the request of a prevailing party.” Id. at 2030. Petitioners here plainly are the “prevailing part[ies]” below—that is precisely why they did not themselves appeal to the Second Circuit. While these principles may apply differently to a petition for certiorari before judgment, there plainly is no sound reason to grant such a petition here, where exactly the same issue has already come before the Court following ordinary appellate practice in Gill.
Practical complications also would flow from Petitioners’ success in the district court. Because they prevailed below, it would make no sense to give Petitioners the benefit of an opening and reply brief in this Court. Thus, if the Court were to grant certiorari before judgment here, it would have to engage in a series of procedural machinations to

18
align the parties properly. There is no reason to go through those steps when the parties are already properly aligned in the House’s Petition in Gill.
In short, there is no good reason for this Court to take the extraordinary step of granting certiorari before judgment when the exact same issue is before the Court—and better presented—in the House’s Petition seeking review of the decision and judgment of the First Circuit in Gill.
III. Certiorari in This Case Would Expedite Neither This Court’s Review of DOMA nor the Resolution of Petitioners’ Claims.
Petitioners offer a variety of reasons why prompt resolution of the issue of DOMA’s constitutionality is important. Pet. 24-27. What they fail to note is that, given the pendency of the Gill petition, granting certiorari before judgment in this case instead of, or in addition to, Gill would not speed its resolution at all. Indeed, the filing of this final round of DOMA Petitions appears to have actually delayed the Court’s consideration of which case or cases to grant, with an attendant delay of the oral argument should certiorari be granted.
Petitioners’ claim against DOMA is identical to that presented in Gill. See Part I, supra. Thus, to the extent Petitioners have standing to pursue their claim, it will be resolved by this Court’s review of Gill. As the normal appellate practice has already been followed in Gill, there plainly is no need to deviate from it in order to resolve this particular case outside of the normal process.
Additionally, Petitioners’ generalized claim of urgency would not justify certiorari before judgment

19
in any event. Petitioners maintain, for instance, that the Executive Branch’s refusal to defend DOMA’s constitutionality in court increases the need to resolve the issue quickly. Pet. 26. The House completely agrees with this proposition, but it is not a reason to grant certiorari before judgment instead of granting the House’s earlier-filed post-court-ofappeals Gill Petition. Moreover, to the extent that the Executive Branch’s anomalous position on DOMA harms anyone, it is not Petitioners (who if anything are assisted by having the Department on their side), but rather the House, which is forced to shoulder the Department’s traditional responsibility to defend the constitutionality of a duly-enacted statute. In such circumstances, if the party most directly impacted by the Department’s decision— namely, the House—is content to pursue review in the normal course, then private plaintiffs cannot persuasively raise this issue as a justification for certiorari before judgment.
Similarly, while Petitioners claim that DOMA causes ongoing harm to them and others, Pet. 26-27, they offer no reason why the extraordinary step of certiorari before judgment would lead to appropriate relief any sooner. Filing their Petition already has resulted in some delay, and this Court presumably will resolve the constitutionality of DOMA as expeditiously as appropriate, no matter which vehicle it chooses for review.
IV. The Record in This Case Is Less Developed Than That in Gill.
Petitioners also suggest that there is something especially comprehensive about the record or the district court’s opinion in this case, such that

20
certiorari before judgment is particularly appropriate. Pet. 30-31. They also claim that the issues have “been fully and exhaustively aired in preparation for this Court’s resolution.” Pet. 30. That is an inaccurate description of the record and proceedings. Far from being fully aired, the decision below was the product of an unusual briefing sequence and was issued without the benefit of oral argument. And, of course, unlike Gill, this case was not “fully and exhaustively aired” or aired at all in the one place in which cases are supposed to be aired before review in this Court—the Court of Appeals. Moreover, most of the expert witnesses appearing in this case and in Gill were identical, and their affidavits were highly similar. Compare Affidavits filed July 15, 2011, Pedersen, (D. Conn.) (ECF Nos. 71-74), with Affidavits filed Nov. 17, 2009, Gill v. Office of Pers. Mgmt., No. 09-cv-10309 (D. Mass.) (ECF Nos. 39-42, 45).8 In any event, this Court will have the benefit of the district court’s analysis—as well as that of multiple other district courts, some of which have upheld DOMA and some of which have struck it down—whether or not it grants an extraordinary petition for certiorari before judgment.
* * *
The House agrees with the Department and with Petitioners that this Court should review DOMA’s constitutionality. But there clearly is no need to circumvent normal appellate practice to do so—
8 The only changes were that psychologist Gregory Herek, an expert witness in Gill, was replaced by psychologist Letitia Anne Peplau in this case, who gave similar evidence. Nancy Cott was an expert witness in Pedersen and submitted an amicus brief in Gill.

21
especially when this case presents unique vehicle problems which could only distract this Court from the central issues concerning DOMA. DOMA’s constitutionality can be fully resolved by granting the House’s Petition in Gill, and this Court should take that path. In all events, it should decline to take the extraordinary step of granting certiorari before judgment in this case.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Certiorari Before Judgment should be denied. The House’s Petition for Certiorari in No. 12-13 should be granted.

22
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON MICHAEL H. MCGINLEY 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 ELENI M. ROUMEL
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 United States House of Representatives
October 19, 2012

 </s> No. 12-231 & No. 12-302

IN THE
Supreme Cou_r_t_o_f__th__e_United States
JOANNE PEDERSEN, ET AL., Petitioners,
v.

OFFICE OF PERSONNEL MANAGEMENT, ET AL., AND

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED

STATES HOUSE OF REPRESENTATIVES,

_________

Respondents.

On Petition for a Writ of Certiorari before Judgment to
the United States Court of Appeals for the Second Circuit
_____________

REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT _____________

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

Counsel for Petitioners Joanne Pedersen, et. al.

i TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................ii

INTRODUCTION ........................................................ 1

ARGUMENT ............................................................... 2

I. The Internal Revenue Code Poses No Obstacle To Granting Review In This Case. .......................................... 2

II. It Is Not A “Problem” That Petitioners Previously Prevailed In The District Court. ............................ 7

CONCLUSION .......................................................... 10

ii TABLE OF AUTHORITIES Camreta v. Greene, 131 S. Ct. 2020 (2011)........ 7, 8 Davis v. United States, 495 U.S. 472 (1990).......... 6 Estate of Tilyou v. Commissioner, 470 F.2d 693 (2d Cir. 1972) ............................................. 5 INS v. Chadha, 462 U.S. 919 (1983) ................ 9, 10 Jana-Rock Construction, Inc. v. New York State Department of Economic Development, 438 F.3d 195 (2d Cir. 2006).................................................................. 5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................. 5 Mistretta v. United States, 488 U.S. 361 (1989)................................................................. 8 SEC v. Chenery Corp., 332 U.S. 194 (1947)........... 4 Townes v. Jarvis, 577 F.3d 543 (4th Cir. 2009).................................................................. 4 United States v. Nixon, 418 U.S. 683 (1974) ......... 8 STATUTES 1 U.S.C. § 1 .............................................................. 5 28 U.S.C. § 1254(1).............................................. 7, 9 OTHER AUTHORITIES Eugene Gressman et al., Supreme Court Practice (9th ed. 2007).............................. 7, 8, 9 IRS Information Letter 2001-0294 (Dec. 31, 2001).................................................................. 6

iii IRS Pub. 17 (1995) .................................................. 6 Rul. 58-66, 1958-1 C.B. 60 ...................................... 6

INTRODUCTION
If the Court decides to hear one or more cases this Term involving the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), this case presents an ideal vehicle for doing so. Reflecting the vast sweep of DOMA through the U.S. Code, the Petitioners in this case represent a large number of both married and widowed persons who have been harmed by DOMA in a myriad of ways, spanning from disadvantageous treatment in private pension plans subject to ERISA, to discrimination in the Social Security program, to the denial of federal employee benefits, to less-favorable treatment under the federal Tax Code. The Petitioners have all been lawfully married in and by Connecticut, Vermont, or New Hampshire—all states that democratically chose to extend marital rights and responsibilities to same-sex couples. The district court issued a thorough and exhaustive analysis of the challenged law and struck it down. The factual record— including extensive expert testimony—is virtually identical to that in Windsor v. United States, No. 1263, and indistinguishable from that in Gill v. Office of Personnel Management, No. 12-13. And there are no meaningful procedural or statutory obstacles in this case that would prevent the Court from squarely reaching the constitutional issue. If the Court declines to grant a writ of certiorari in Gill, which similarly exposes the vast all-encompassing effects of DOMA on married (and widowed) same-sex couples, this case stands ready as the perfect alternate vehicle to resolve this critical issue.

2
BLAG cannot seriously dispute the suitability of this case as a vehicle for adjudicating the many challenges to DOMA currently before the Court. While BLAG suggests that four of the thirteen Petitioners lack standing because a different statutory provision of the Internal Revenue Code would have the same effect on them as DOMA, this argument is a meritless sideshow. The objection raised by BLAG does not affect the majority of the Petitioners or claims in this case and would not prevent the Court from addressing the central constitutional challenge to DOMA. And the procedural posture of this case—a grant of certiorari before judgment sought by the prevailing party in the district court, while an appeal in the Court of Appeals is pending—is wholly appropriate and would not require any unusual procedural maneuvers. This case demonstrates the many ways in which DOMA impacts and disadvantages same-sex couples and disrespects the marital status determinations and marital eligibility policies chosen democratically by the states, and represents an ideal vehicle for the Court to consider these issues.
ARGUMENT
I. The Internal Revenue Code Poses No Obstacle To Granting Review In This Case.
BLAG opposes certiorari on the ground that some of the Petitioners—i.e., the two couples who sought to file joint tax returns (“Tax Petitioners”)—were harmed not “solely” by DOMA, but also by the Internal Revenue Code Section 6013(a) (“Section 6013”). BLAG argues that Section 6013, which

3
states that a “husband” and “wife” may file joint tax returns, would preclude the Tax Petitioners from filing jointly even if DOMA were struck down as unconstitutional, thereby depriving them of standing. As an objection to a grant of certiorari in this case, BLAG’s concerns are baseless.
At the outset, BLAG’s novel reading of Section 6013 has no bearing on the suitability of this case as a vehicle for adjudicating the constitutionality of DOMA. While BLAG asserts that “[m]any of the Petitioners seek to file joint federal income tax returns,” Opp. 15 (emphasis added), only four of the thirteen Petitioners—Suzanne and Geraldine Artis, Bradley Kleinerman, and James “Flint” Gehre—have claims based on joint filing. The remaining Petitioners have claims having nothing to do with taxes or joint filing; the Court would have a direct path for adjudicating Petitioners’ constitutional challenge to DOMA in the context of those other claims (such as those predicated upon ERISA, Social Security, or Federal Employee Health Benefits) irrespective of BLAG’s statutory argument. BLAG’s argument under Section 6013 would thus do nothing to obstruct or complicate resolution of the constitutional challenge in this case.
BLAG’s argument under Section 6013 also fails as a factual matter. The Tax Petitioners in this case were actually harmed by DOMA, not by Section 6013. As the district court recognized, “the IRS has repeatedly stated that DOMA—and not Code Section 6013—is the reason that same sex couples may not file joint tax returns.” Pet. App. 22a. In fact, it did

4
so in this case, finding that Tax Petitioner Suzanne Artis could not file a joint return because of “DOMA,” not because Section of 6013.1
At best, BLAG is arguing that there is a reading of the Internal Revenue Code that the IRS could adopt, but has not actually yet adopted, that would deprive the Tax Petitioners of the ability to file joint tax returns even absent DOMA. But the possibility of a future adverse ruling by the IRS does not deprive the Tax Petitioners of standing to challenge the actual adverse rulings based on DOMA that the IRS made in their cases. An agency—much less an intervenor such as BLAG—cannot simply cook up alternative, post hoc bases for the agency’s action in litigation filings, and then claim that a litigant lacks standing because the litigant failed to challenge those alternative, not-yet-existing bases at the time the litigant challenged the agency action in court.2
Standing does not require an absolute guarantee that Petitioners will prevail on remand; it requires only that there be some “realistic possibility” that an agency would, absent a challenged statute, grant the relief the Petitioners seek. Townes v. Jarvis, 577 F.3d 543, 548 (4th Cir. 2009) (quoting Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C. Cir.
1 This finding was set forth in an IRS Determination Letter to Suzanne Artis dated February 18, 2011, which is contained in the record as an attachment to Petitioners’ summary judgment motion. In the case of Tax Petitioners Kleinerman and Gehre, the IRS never even provided a determination letter at all.
2 See SEC v. Chenery Corp., 332 U.S. 194 (1947).

5
1991)). What matters is that it is not “merely speculative” that Tax Petitioners’ injuries will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). There is no doubt a “substantial likelihood” that the Tax Petitioners will be able to file joint tax returns if DOMA is held to be unconstitutional. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006).
Indeed, BLAG’s novel interpretation of Section 6013 is unlikely ever to be adopted by the IRS. As the district court properly held, the far better reading of Section 6013 is that it would not bar same-sex couples from filing joint returns absent DOMA. Pet. App. 22a. The Dictionary Act, 1. U.S.C. § 1, and the Tax Code dictate that gendered terms such as “husband” and “wife” be read as genderneutral, so that same-sex and opposite-sex couples may file jointly. Pet App. 22a.3
Moreover, BLAG has not mustered any evidence to suggest that the IRS has interpreted or ever would interpret Section 6013 to preclude the Tax Petitioners from filing joint returns absent DOMA. In fact, the IRS has never adopted the narrow,
3 While BLAG’s preferred reading of Section 6013 is that “husband” and “wife,” when viewed in context, suggest reference to opposite sex spouses, Opp. 15-16, it cites no authority to that effect. In any event, “spouse” is used synonymously with “husband” and “wife” throughout the Tax Code. Cf. Estate of Tilyou v. Comm’r, 470 F.2d 693, 694 n.2 (2d Cir. 1972) (interpreting “his surviving spouse” to include husband or wife).

6
gendered construction of Section 6013 that BLAG urges here. Before DOMA, the IRS took the position that the statute allowed couples to file jointly so long as couples were married under state law. See IRS Pub. 17, at 22 (1995) (explaining that filing status depends on marital status); Rev. Rul. 58-66, 1958-1 C.B. 60 (explaining that “martial status” is determined “under state law”). After DOMA, the IRS took the position that DOMA changed the meaning of 6013 to exclude same-sex couples. See IRS Information Letter 2001-0294 (Dec. 31, 2001) (stating that “Vermont civil union cannot under DOMA, be a marriage for purposes of the Internal Revenue Code”) (emphasis added). The IRS’s consistent decisions pointing to DOMA, rather than to Section 6013, as precluding married same-sex couples from filing joint returns, are both “contemporaneous” and “have long been in use,” and as such are due “considerable weight.” Davis v. United States, 495 U.S. 472, 484 (1990). The IRS’s documented position also suggests that, if DOMA were struck down, the IRS, as the agency responsible for interpreting and implementing the Tax Code, would not interpret Section 6013 to preclude samesex married couples from filing jointly, but would instead interpret Section 6013 to allow joint filing for all married couples.
The flaws in BLAG’s argument are compounded by the fact that its preferred reading of Section 6013 would be untenable on remand in the event DOMA were struck down. In such a scenario, Section 6013 would suffer from the same constitutional infirmity as DOMA, and as a matter of constitutional

7
avoidance would almost certainly be construed to permit same-sex couples to file joint tax returns. And in the unlikely event the IRS were to rely on Section 6013 to deny joint filing in the future, the Tax Petitioners—as well as any similarly situated couples—would likely succeed in a constitutional challenge to such action. At a bare minimum, the Tax Petitioners have standing to challenge DOMA so they can so make this argument on remand. BLAG’s tax theory is not a reason to decline to hear this case.
II. It Is Not A “Problem” That Petitioners Previously Prevailed In The District Court.
Petitioners also have standing to seek certiorari in this case. It is black-letter law that “any party” to a case pending “in the court of appeals” may petition for a writ of certiorari. 28 U.S.C. § 1254(1) (emphasis added). This language covers not only those who have lost in the court below but also “petitions brought by litigants who prevailed.” Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (citing Eugene Gressman et al., Supreme Court Practice 87 (9th ed. 2007)). BLAG and DOJ have filed notices of appeal in this case, and both of those appeals are pending in the Second Circuit. See No. 12-3872 (BLAG appeal); No. 12-3273 (DOJ appeal). As a statutory matter, therefore, Petitioners have standing to seek certiorari because this case is undoubtedly “in the court[] of appeals,” as required by 28 U.S.C. § 1254(1). See Eugene Gressman et al., Supreme Court Practice 83-84 (9th ed. 2007).
Article III’s standing requirements are satisfied in this case for the same reason. Given BLAG’s and

8
DOJ’s pending appeals, there is no doubt that a case or controversy is pending before the Second Circuit. That petitioners seek to “transfer [those] appeal[s] from one appellate court to another,” does not alter the fact that there remains a live case or controversy in this action for purposes of Article III. Gressman, supra, at 426.
The fact that petitioners prevailed in the district court does not alter the analysis. This Court has granted such petitions for certiorari before judgment filed by similarly situated parties. See, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting petitions for certiorari of both Mistretta and the United States where the district court had ruled in favor of the United States in a decision concerning the constitutionality of the federal sentencing guidelines); United States v. Nixon, 418 U.S. 683, 686-87 & n.2 (1974) (granting petition for certiorari before judgment of United States where district court had ruled in favor of the United States in a decision concerning the issuance of a subpoena).
In urging the contrary conclusion, BLAG points to its brief in opposition to certiorari filed in U.S. Dep’t Health & Human Servs. v. Massachusetts, No. 12-15. See Opp. 17. But none of the cases cited in that brief involves the standing of parties seeking certiorari before judgment. See, e.g., Camreta, 131 S. Ct. at 2026 (discussing petition for certiorari filed after petitioners had prevailed in the court of appeals

9
on issues of qualified immunity); INS v. Chadha, 462 U.S. 919, 930 (1983) (similar).4
To be sure, a party who prevails in the court of appeals often may have “receive[d] all that he has sought,” Chadha, 462 U.S. at 930, and is not sufficiently “aggrieved” to petition for certiorari. But that is not what has occurred here. Given the appeals currently pending against them, Petitioners have not received any such final resolution, and have not received any benefit from prevailing in the district court. They still suffer adverse consequences from DOMA—which continues to deprive them myriad dignitary and financial benefits. In short, Petitioners’ injuries—like those of other prevailing parties who have sought certiorari before judgment, see supra—are ongoing.
Further, even if BLAG were correct that Petitioners’ victory in the district court deprived them of appellate standing (which it does not), that should be of no moment in considering whether to accept this case for review. That is because the federal defendants have also filed a petition for certiorari before judgment in this case. DOJ Pet.,
4 Even BLAG concedes that appellate standing principles “may apply differently to a petition for a writ of certiorari before judgment.” Opp. 17. In fact, although the language of 28 U.S.C. § 1254(1) permits “any party” to file seek certiorari either “before or after rendition of judgment,” by a court of appeals, § 1254(1) (emphasis added), it appears that the Court has historically granted such petitions by parties prevailing in the district court only where, as here, an appeal was pending in the court of appeals. See Gressman, supra, at 426.

10
No. 12-302 (filed Sept. 2012). As that petition points out, “the district court’s decision was entered against the government such that it is not a “prevailing party.” Id. at 14 n.4. As this Court’s decision in Chadha, 462 U.S. 919, makes clear, “[w]hen an agency of the United States is a party to a case in which the Act of Congress is held unconstitutional,” it may seek this Court’s review of that decision, even if, as here, the Executive “agree(s) with the holding that the statute in question is unconstitutional.” Id. at 930-31. Because the federal defendants have standing to seek review in his case, any question about Petitioners’ standing to do so is largely academic. Put simply, this Court need not even assess whether Petitioners have appellate standing here in order to grant review in this case.
CONCLUSION
For the foregoing reasons, and those set forth in Petitioners’ opening petition, the petition for a writ of certiorari before judgment should be granted.

11 Respectfully submitted,

Kenneth J. Bartschi Karen Dowd HORTON, SHIELDS & KNOX 90 Gillett Street Hartford, CT 06105 (860) 522-8338
Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
David J. Nagle Richard L. Jones SULLIVAN & WORCESTER LLP One Post Office Square Boston, MA 02109 (617) 338-2800

Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu GAY & LESBIAN ADVOCATES & DEFENDERS 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
Paul M. Smith Luke C. Platzer Melissa A. Cox JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000
*Counsel of Record

October 31, 2012


[CONTENT] November 9, 2010 | Connecticut | Vermont | New Hampshire | the U.S. District Court | the Office of Personnel Management | the Social Security Administration | the U.S. Postal Service | the Department of the Treasury | the Department of Labor | the Department of Justice | the United States ||| Gay and Lesbian Advocates and Defenders | under 42 | 1983 | the Declaratory Judgment Act | 28 ||| the Defense of Marriage Act | 1 | the Fifth Amendment |||  ||| February 25, 2011 | the Department of Justice ||| April 26 | the Bipartisan Legal Advisory Group | the House of Representatives | Court | Vanessa L. Bryant | May 27 ||| Pedersen | Office of Pers ||| 2011 | U.S. ||| D. ||| July 15, 2011 | August 15 | BLAG ||| the following year ||| June 20, 2012 | BLAG | the Second Circuit | Windsor v. United States</i | S.D.N.Y. |||  ||| The District Court | Bryant | BLAG | July 4 | BLAG | the Second Circuit's ||| July 31, 2012 | Court | Bryant | BLAG ||| Pedersen | Office of Pers ||| 2012 | 3113883 | 2012 | U.S. ||| 106713 | D. | 2012 ||| Court | Section 3 ||| BLAG | the Second Circuit | September 26, 2012 ||| August 17, 2012 | the Supreme Court Rule | the Supreme] Court |||  |||  |||  ||| June 26, 2013 | the Supreme Court | the next day, June 27, 2013 ||| July 23, 2013 | the Second Circuit [SUMMARY] On November 9, 2010, several citizens of Connecticut, Vermont and New Hampshire who were or had been married to partners of the same sex under the law of their states filed a lawsuit in the U.S. District Court for the District of Connecticut against the Office of Personnel Management, the Social Security Administration, the U.S. Postal Service, the Department of the Treasury, the Department of Labor, the Department of Justice, and the United States. The plaintiffs, represented by Gay and Lesbian Advocates and Defenders (GLAD) and by private counsel, sued under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, alleging a violation of equal protection. Specifically, plaintiffs claimed that operation of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, to deny them a variety of state and federal benefits that would be available to similarly situated individuals with spouses of the opposite sex violated the equal protection component of the due process clause of the Fifth Amendment. Plaintiffs sought declaratory, injunctive and monetary relief.

On February 25, 2011, the Department of Justice, representing the defendants, notified the court that it had come to the conclusion that DOMA is unconstitutional and that it would thus cease defending it. In response, on April 26 the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) moved to intervene in defense of the act, and the Court (Judge Vanessa L. Bryant) granted its motion on May 27. <i>Pedersen v. Office of Pers. Mgmt.</i>, 2011 U.S. Dist. LEXIS 155323 (D. Conn. 2011).

On July 15, 2011, plaintiffs moved for summary judgment, and on August 15, BLAG moved to dismiss plaintiffs' complaint. Briefing on both motions continued over the course of the following year.

On June 20, 2012, BLAG moved to stay the proceedings pending the decision of the Second Circuit in <i>Windsor v. United States</i>, No. 10-cv-08435 (S.D.N.Y.) [<a href="http://www.clearinghouse.net/detail.php?id=12113">PB-NY-0017</a>]. The District Court (Judge Bryant) denied BLAG's motion on July 4, finding BLAG's assertion that the Second Circuit's decision would be dispositive in the case to be speculative.

On July 31, 2012, the Court (Judge Bryant) issued an order denying BLAG's motion to dismiss and granting plaintiffs' motion for summary judgment. <i>Pedersen v. Office of Pers. Mgmt.</i>, 2012 WL 3113883, 2012 U.S. Dist. LEXIS 106713 (D. Conn. 2012). The Court found that "homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny," but also found that application of heightened scrutiny was unnecessary to resolve the case, as Section 3 of DOMA failed to pass muster even under rational basis review.  BLAG filed notice of appeal with the Second Circuit on September 26, 2012.  

On August 17, 2012, plaintiffs filed a petition for certiorari before judgment under the Supreme Court Rule that permits deviation from normal appellate practice "upon a showing that the case is of such imperative public importance as to...require immediate determination in [the Supreme] Court." Sup. Ct. R. 11.  On June 26, 2013 the Supreme Court held Section 3 of DOMA to be unconstitutional in <a href="http://www.clearinghouse.net/detail.php?id=12113">Windsor v. United States</a> and denied certiorari in this case the next day, June 27, 2013.  On July 23, 2013, parties agreed to withdraw appeals before the Second Circuit in this case.  