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Case 8:12-cv-01137-CBM-AJW Document 37

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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 BANCROFT PLLC 6 1919 M Street, N.W. 7 Suite 470 Washington, D.C. 20036 8 202-234-0090 (telephone) 9 202-234-2806 (facsimile) 10 11 12 13 14 15 16 17 18 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov

OFFICE OF GENERAL COUNSEL, 19 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 20 Washington, D.C. 20515 21 202-225-9700 (telephone) 202-226-1360 (facsimile) 22 23 Counsel for Proposed Intervenor-Defendant the Bipartisan Legal Advisory Group of the 24 United States House of Representatives 25 26 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) MEMORANDUM OF Plaintiffs, ) PROPOSED INTERVENOR) DEFENDANT THE v. ) BIPARTISAN LEGAL ) ADVISORY GROUP OF THE JANET NAPOLITANO, et al., ) UNITED STATES HOUSE OF ) REPRESENTATIVES IN Defendants. ) SUPPORT OF MOTION TO ) DISMISS AND IN ) OPPOSITION TO MOTION ) FOR PRELIMINARY ) INJUNCTION ) ) Hearings: Oct. 9, 2012 & ) October 15, 2012 ) Time: 10:00 a.m. ___________________________________ ) Hon. Consuelo B. Marshall

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1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III.

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................. iv INTRODUCTION .................................................................................. 1

5 BACKGROUND .................................................................................... 1 I. II. Factual Background, as Alleged......................................... 1 Procedural Background ...................................................... 4 A. Houses Motion to Dismiss ........................................... 5 B. Plaintiffs Motion for Preliminary Injunction ............... 7 Legal Background .............................................................. 8 A. DOMAs Legislative Branch History ........................... 10 B. DOMAs Executive Branch History ............................. 15 STANDARDS OF REVIEW .................................................................. 17 I. Motion to Dismiss .............................................................. 17 A. Rule 12(b)(1): Subject Matter Jurisdiction .................. 17 B. Rule 12(b)(6): Failure to State a Claim........................ 18 Motion for Preliminary Injunction ..................................... 18

ARGUMENT .......................................................................................... 19 I. II. III. Plaintiffs Lack Standing to Challenge DOMA Section 3 .. 19 Congressional Enactments Are Entitled to a Strong Presumption of Constitutionality ....................................... 20 DOMA Section 3 Satisfies Equal Protection Principles .... 21 A. Binding Supreme Court and Ninth Circuit Precedent Foreclose an Equal Protection Challenge to Traditional Marriage Provisions ................................... 21 i

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1. Binding Supreme Court Authority: Baker v. Nelson ........................................................ 21 2. Binding Ninth Circuit Authority: Adams v. Howerton .................................................. 24 B. Rational Basis Review Governs Any Equal Protection Challenge to DOMA Section 3.................... 25 1. Rational Basis Review Governs Sexual Orientation Classifications .......................................................... 25 2. DOMA Section 3 Does Not Classify on the Basis of Gender ........................................................ 28 C. DOMA Section 3 Satisfies Rational Basis Review ...... 29 1. Uniquely Federal Interests ....................................... 32 a. Maintaining a Uniform Federal Definition of Marriage .............................................................. 32 b. Preserving the Public Fisc and Previous Legislative Judgments......................................... 35 c. Caution in Facing the Unknown Consequences of a Novel Redefinition of a Foundational Social Institution ................................................. 37 2. Common Federal-State Interests: Congress Rationally Sought to Encourage Responsible Procreation ............................................................... 40 a. DOMA Section 3 Rationally Focuses on Opposite-Sex Couples in Subsidizing the Begetting and Raising of Children ..................... 42 b. DOMA Rationally Encourages and Subsidizes the Raising of Children by Their Own Biological Mothers and Fathers .......................... 44

ii

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. V. IV.

c. DOMA Section 3 Rationally Encourages Childrearing in a Setting with Both a Mother and a Father ......................................................... 46 DOMA Section 3 Satisfies Substantive Due Process Principles ............................................................................ 47 A. No Fundamental Liberty Interest Is at Stake in This Case ....................................................................... 47 B. DOMA Does Not Infringe the Purported Liberty Interest Plaintiffs Have Identified ................................. 51 Any Redefinition of Marriage Should Be Left to the Democratic Process ............................................................ 54 Plaintiffs Motion for Preliminary Injunction Should Be Denied for the Additional Reason That Plaintiffs Have Not, and Cannot, Make the Requisite Showing of Injury .. 55

CONCLUSION ....................................................................................... 60 CERTIFICATE OF SERVICE

iii

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1 2

TABLE OF AUTHORITIES

Constitutional Provisions, Statutes, and 3 Federal Rules of Civil Procedure 4 1 U.S.C. 7 ............................................................................................. 1 5 5 U.S.C. 8101 ....................................................................................... 9 6 5 U.S.C. 8341 ....................................................................................... 9 7 8 U.S.C. 1101 ....................................................................................... 1 8 8 U.S.C. 1151 ....................................................................................... 19, 24 8 U.S.C. 1152 ....................................................................................... 2 9 8 U.S.C. 1153 ....................................................................................... 2 10 8 U.S.C. 1182 ....................................................................................... passim 11 8 U.S.C. 1186a ..................................................................................... 9-10 12 8 U.S.C. 1255 ....................................................................................... 3, 58 13 26 U.S.C. 7703 ..................................................................................... 9 14 28 U.S.C. 1257 ..................................................................................... 22 15 38 U.S.C. 101 ....................................................................................... 9 16 38 U.S.C. 103 ....................................................................................... 35 17 42 U.S.C. 416 ....................................................................................... 9 18 Dont Ask, Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 U.S.C. 651, 19 654 ................................................................................................ 54 20 Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002) ................................ 2 21 22 Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996) .. 59 23 Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) .......... 10 24 Revenue Act of 1921, 223(b)(2), 42 Stat. 227, 250 ............................... 9 25 Fed. R. Civ. P. 65 .................................................................................... 55 26 Fla. Const. art. I, 27.............................................................................. 34 27 Cal. Veh. Code 12801.5 (West 2012) .................................................. 57 28 iv

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1 Legislative Documents 2 142 Cong. Rec. (1996) ............................................................................ passim 3 150 Cong. Rec. (2004) ............................................................................ passim 4 152 Cong. Rec. (2006) ............................................................................ 34, 39 32 Weekly Comp. Pres. Doc. .................................................................. 10 5 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. 6 on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 (1996) .................................................................. 11, 12, 14 7 8 Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ................................................ 14-15 9 H.R. Rep. No. 104-664 (1996) ................................................................ passim 10 Respect for Marriage Act, H.R. 1116, 112th Cong. (2011).................... 54 11 The Respect for Marriage Act, S. 598, 112th Cong. (2011) ................... 54 12 13 Cases 14 Able v. United States, 155 F.3d 628 (2d Cir. 1998) ......................................................... 27 15 Adams v. Howerton, 16 673 F.2d 1036 (9th Cir. 1982) ...................................................... passim 17 Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ................................................ 9, 23 18 19 Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) ........... 23 20 Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980) ........................................................ 19 21 22 Andersen v. King Cnty., 138 P.3d 963, 158 Wash. 2d 1 (Wash. 2006) ............................... 23, 29, 41 23 Assn of Residential Res. in Minn., Inc. v. Gomez, 24 51 F.3d 137 (8th Cir. 1995) .......................................................... 36 25 Aufort v. Aufort, 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct. App. 1935) ........ 41 26 27 28 v

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1 Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530 (Haw. 1993) ....................................... 10 2 Baker v. Nelson, 3 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972) ..................... 5, 21, 22 4 Baker v. Nelson, 191 N.W.2d 185, 291 Minn. 310 (Minn. 1971) ........................... 21 5 6 Balistreri v. Pacifica Police Dept, 901 F.2d 696 (9th Cir. 1988) ........................................................ 18 7 Ballard v. United States, 329 U.S. 187, 193, 67 S. Ct. 261, 91 L. Ed. 181 (1946) .............. 46 8 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ........... 18 10 Ben-Shalom v. Marsh, 11 881 F.2d 454 (7th Cir. 1989) ........................................................ 27 12 Bipartisan Legal Advisory Group of the U.S. House of Reps. v. Gill, No. 12-13 (June 29, 2012), 2012 WL 2586935............................ 57 13 14 Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla.)................................................... 17 15 Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ............. 52 16 17 Bowen v. Owens, 476 U.S. 340, 106 S. Ct. 1881, 90 L. Ed. 2d 316 (1986) ............. 36, 37 18 Cahill v. Liberty Mut. Ins. Co., 19 80 F.3d 336 (9th Cir. 1996) .......................................................... 18 20 Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) ..................... 52 21 Catholic Soc. Servs., Inc. v. Reno, 22 134 F.3d 921 (9th Cir. 1997) ........................................................ 51 23 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................................................... 26, 27, 41 24 25 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) ............. 25, 26 26 City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989)................. 29 27 28 vi

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1 City of S. Lake Tahoe v. Cal. Tahoe Regl Planning Agency, 625 F.2d 231 (9th Cir. 1980) ........................................................ 17 2 Collins v. City of Harker Heights, Tex., 3 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) ........... 48 4 Conaway v. Deane, 932 A.2d 571, 401 Md. 219 (Md. 2007) ...................................... 28, 41 5 6 Cozen OConnor v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ....................................................... 17 7 Dailey v. Veneman, No. 01-3146, 2002 WL 31780191 (6th Cir. Dec. 3, 2002) .......... 34 8 9 Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) ............... 36 10 Davis v. Prison Health Servs., 11 679 F.3d 433 (6th Cir. 2012) ....................................................... 26 12 Dean v. District of Columbia, 653 A.2d 307, 63 USLW 307 (D.C. 1995) ..................................... 9 13 14 DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ............. 51 15 Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal.) ..................................................... 17, 27 16 17 Druker v. Commr, 697 F.2d 46 (2d Cir. 1982) ........................................................... 53 18 FCC v. Beach Commcns, Inc., 19 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)............. 29, 30 20 Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ................. 50 21 Forrester v. White, 22 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) ............... 43 23 Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) ............... 26 24 25 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .......................................... 27 26 Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.) ..................................................... 17 27 28 vii

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1 Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.) .......................................... 17 2 GTE Corp. v. Williams, 3 731 F.2d 676 (10th Cir. 1984) ...................................................... 59 4 Hamilton v. City of San Bernardino, 107 F. Supp. 2d 1239 (C.D. Cal. 2000) ........................................ 18 5 6 Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) ............. 52 7 Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) ........................................................ 36 8 9 Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) ........... 29, 46 10 Henriquez-Rivas v. Holder, 11 449 F. Appx 626 (9th Cir. 2011) ................................................. 25 12 Hernandez v. Robles, 855 N.E.2d 1, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006) .... 40, 45 13 14 Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975) ............... 22, 24 15 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ....................................................... 6, 26 16 17 Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) ............ 15 18 I.N.S. v. Pangilinan, 19 486 U.S. 875, 108 S. Ct. 2210, 100 L. Ed. 2d 882 (1988) ........... 50 20 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ......................................... 44 21 In re Cardelucci, 22 285 F.3d 1231 (9th Cir. 2002) ...................................................... 33 23 In re Cervantes-Gonzalez, 22 I. & N. Dec. 560 (BIA 1999) ................................................... 60 24 25 In re Cooper, 592 N.Y.S.2d 797, 187 A.D.2d 128 (N.Y. App. Div. 1993) ........ 23 26 In re Dorman, 25 I. & N. Dec. 485 (BIA 2011) ................................................... 58 27 28 viii

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1 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004)..................................... 15, 27, 28 2 In re Levenson, 3 587 F.3d 925 (9th Cir. E.D.R. 2009) ............................................ 43 4 In re Levenson, 560 F.3d 1145 (9th Cir. E.D.R. 2009) .......................................... 44 5 6 In re Marriage Cases, 183 P.3d 384, 76 Cal. Rptr. 683 (Cal. 2008) ................................ 28 7 Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193 (C.D. Cal. 2008) ....................................... 18 8 9 Jackson v. Abercrombie, No. 11-00734, -- F. Supp. 2d -- , 2012 WL 3255201 10 (D. Haw. Aug. 8, 2012) ................................................................ 28, 50 11 Jimenez v. Weinberger, 417 U.S. 628, S. Ct. 2496, 41 L. Ed. 2d 363 (1974) .................... 30 12 13 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ....................................................... 27 14 Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974) ............... 31 15 16 L.A. Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197 (9th Cir. 1980) ...................................................... 56 17 Lawrence v. Texas, 18 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ........... 24, 39, 52 19 Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ...................................................... 27 20 21 Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.) ..................................................... passim 22 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ........... 17, 20 23 24 Lydo Enters. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984) ...................................................... 59 25 Lyng v. Auto. Workers, 26 485 U.S. 360, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) ............. 52 27 28 ix

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1 Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977) ............... 22 2 Marsh v. Chambers, 3 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983) .......... 39 4 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) ............... 26 5 6 Massachusetts v. U.S. Dept of HHS, 682 F.3d 1 (1st Cir. 2012) ................................................................ 26, 31, 36 7 Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) ...... 17 8 9 Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) ................. 30 10 McConnell v. FEC, 11 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) ............... 20 12 McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) .......................................................... 23 13 14 Mier v. Owens, 57 F.3d 747 (9th Cir. 1995) .......................................................... 18 15 Miller v. Albright, 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) ........... 50 16 17 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ............................................. 23 18 Mullins v. Oregon, 19 57 F.3d 789 (9th Cir. 1995) .......................................................... 44, 50 20 Murphy v. Ramsey, 114 U.S. 15, 5 S. Ct. 747, 29 L. Ed. 47 (1885) ............................ 12 21 Natl Ctr. for Immigrants Rights, Inc. v. I.N.S., 22 743 F.2d 1365 (9th Cir. 1984) ...................................................... 55 23 Natl Gay Task Force v. Bd. of Educn of Okla. City, 729 F.2d 1270 (10th Cir. 1984) ................................................... 27 24 25 New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L. Ed. 747 (1932) ...................... 39 26 Nuclear Info. & Res. Serv. v. Nuclear Reg. Commn, 457 F.3d 941 (9th Cir. 2006) ........................................................ 20 27 28 x

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1 Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010) ...................................................... 34 2 Nunez-Reyes v. Holder, 3 646 F.3d 684 (9th Cir. 2011) ........................................................ 34 4 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009).............. 20 5 6 Oakland Trib., Inc. v. Chron. Publg Co., 762 F.2d 1374 (9th Cir. 1985) ...................................................... 57, 59 7 Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704 (D. Ariz. 1996) ................................................. 17 8 9 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ........................................................ 27 10 Pedersen v. Office of Personnel Mgmt., 11 No. 3:10-cv-1750, -- F. Supp. 2d. -- , 2012 WL 3113883 (D. Conn. July 31, 2012) .............................................................. 27 12 13 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ..................................................... 23, 26 14 Phila. Police & Fire Assn for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989) .................................. 53 15 16 Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) ............ 36 17 Price-Cornelison v. Brooks, 18 524 F.3d 1103 (10th Cir. 2008) ................................................... 27 19 Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) ........................................................ 49 20 21 Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) ............. 32, 52 22 Regan v. Time, Inc., 468 U.S. 641, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984)................ 20 23 24 Renne v. Geary, 501 U.S. 312, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) .......... 20 25 Reno v. Flores, 26 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) ............... 49 27 28 xi

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1 Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878) ............................................... 10 2 Rinaldi v. Yeager, 3 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966) ............... 36 4 Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989) ........... 24 5 6 Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) ........... 23-24, 26 7 Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981) .................. 21 8 9 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729 (9th Cir. 1987) ........................................................ 18 10 San Antonio Indep. Sch. Dist. v. Rodriguez, 11 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) ..................... 26 12 Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) ............. 44 13 14 Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981) ............. 30 15 Shabani v. Classic Design Servs., Inc., 699 F. Supp. 2d 1138 (C.D. Cal. 2010) ....................................... 18 16 17 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) .......................................... 15, 27, 54 18 Stanley v. Illinois, 19 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) ............... 45 20 Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla.) ......................................................... 15 21 Tanner Motor Livery, Ltd. v. Avis, Inc., 22 316 F.2d 804 (9th Cir. 1963) ........................................................ 56 23 Tenet v. Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) ............... 24 24 25 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) .......................................................... 27 26 Tigner v. Texas, 310 U.S. 141, 60 S. Ct. 879, 84 L. Ed. 1124 (1940) .................... 31 27 28 xii

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1 Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Feb. 23, 2012) ......................................... 58 2 Torres-Barragan v. Holder, 3 No. 2:09-cv-08564 (C.D. Cal.) ..................................................... passim 4 Tuan Anh Nguyen v. INS, 533 U.S. 53, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) ............. 44, 46 5 6 U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) ............... 30 7 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980) ............... 53 8 9 United States v. Five Gambling Devices, 346 U.S. 441, 74 S. Ct. 190, 98 L. Ed. 179 (1953) ......................... 21 10 United States v. Morrison, 11 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) ........... 58 12 United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) .......... 46 13 14 Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) ................... 29, 46 15 Vill. of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 797 (1974) ........................ 31 16 17 Walters v. Natl Assn of Radiation Survivors, 473 U.S. 305, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985)................ 21 18 Washington v. Glucksberg, 19 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) ........... 48, 50, 54 20 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ....................................... passim 21 Witt v. Dept of Air Force, 22 527 F.3d 806 (9th Cir. 2008) ........................................................ 6, 24, 26 23 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .................................................... 27 24 25 Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983) ........................................................ 55 26 27 28 xiii

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1 Regulations 2 8 C.F.R. 274a.12 .................................................................................. 2, 56 3 The Family and Medical Leave Act, 60 Fed. Reg. 2,180, 2,190-91 (1995) .............................................................................................. 9 4 5 Other Authorities 6 1 French National Assembly, No. 2832: Report Submitted on Behalf of the Mission of Inquiry on the Family and the Rights 7 of Children (Jan. 25, 2006) ........................................................... 41 8 1 William Blackstone, Commentaries on the Laws of England ............. 41 9 Adam P. Romero, et al., Census Snapshot (Dec. 2007) ......................... 42 10 Council on Families in America, Marriage in America: A Report to the Nation (1995) ......................................................................... 12 11 12 Daphne Lofquist, et al., Housholds and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 2012) ................................................... 43 13 Eugene Gressman, et al., Supreme Court Practice 264 (9th ed. 2007) .. 58 14 Gary J. Gates, Family formation and raising children among same-sex 15 couples, Family Focus on . . . LGBT Families, (Natl Council on Fam. Rel.)Winter 2011 ............................................................ 43 16 17 Gunnar Andersson, et al., The Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 79 (2006) .................... 47 18 Institute for American Values, Marriage and the Law: A Statement of Principles (2006) ...................................................................... 41 19 20 Joslin v. New Zealand, No. 902/1999 H.R. Comm. 2002, in 2 Report of the Human Rights Comm., U.N. Doc. A/57/40 (2002) .......... 42 21 Letter from Andrew Fois, Asst Atty Gen., to Hon. Charles T. 22 Canady (May 29, 1996) ................................................................ 15 23 Letter from Andrew Fois, Asst Atty Gen., to Hon. Henry J. Hyde (May 14, 1996) ............................................................................. 15 24 Letter from Andrew Fois, Asst Atty Gen., to Hon. Orrin G. Hatch 25 (July 9, 1996) ................................................................................ 15 26 Letter from G.A.O. to Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of Marriage Act .................................... 10 27 28 xiv

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1 Living Arrangements of Children Under 18 Years Old: 1960 to Present, U.S. Census Bureau ........................................................ 42 2 N.M. Atty Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) ........ 34 3 Matthijs Kalmijn, et al., Income Dynamics in Couples and the 4 Dissolution of Marriage and Cohabitation, 44 Demography 159 (2007) ..................................................................................... 47 5 6 Re: Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, 7 Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Atty Gen. Op. 8 No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) ........................... 34 9 Schalk & Kopf v. Austria, No. 30141/04 E.U. Ct. H. R. 2010 ............... 41 10 U.S. Dept of State, Visa Bulletin for Sept. 2012 ................................... 3 11 United Nations Convention on the Rights of the Child, art.7, 28 I.L.M. 1456 (Nov. 20, 1989) ................................................... 45 12 13 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting,& Americas Children, 15 Future of Children 14 (Fall 2005) .................................................................................... 38, 46 15 16 17 18 19 20 21 22 23 24 25 26 27 28 xv

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1 2

INTRODUCTION This case concerns the constitutionality of Section 3 of the Defense of

3 Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996), 1 U.S.C. 4 7, in the context of certain benefits provided under the Immigration and Nationality 5 Act (INA), 8 U.S.C. 1101, et seq. See Compl. for Declaratory & Injunctive 6 Relief 3, 4 (July 12, 2012) (ECF No. 1) (Compl.). It is the third such case to 7 challenge DOMA Section 3 in the immigration context in this district court in the 8 past two years. In both of the other two cases, the district court dismissed the 9 complaints on their merits. See Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. 10 Cal. Sept. 28, 2011) (ECF No. 38) (Lui Order) (dismissing both equal protection 11 and substantive due process claims); Order, Torres-Barragan v. Holder, No. 2:0912 cv-08564 (C.D. Cal. Apr. 30, 2010) (ECF No. 24) (Torres-Barragan Order) 13 (same). 14 Proposed Intervenor-Defendant the Bipartisan Legal Advisory Group of the 15 United States House of Representatives (House) submits this memorandum in 16 support of its motion to dismiss, for lack of subject matter jurisdiction and for 17 failure to state a claim, Plaintiffs two Fifth Amendment claims, see Notice of Mot. 18 & Mot. of Proposed Intervenor-Def. [House] to Dismiss (Sept. 14, 2012), and in 19 opposition to Plaintiffs motion for preliminary injunction, see Notice of Mot. & 20 Mot. for Prel. Inj. (Aug. 23, 2012) (ECF No. 12) (Mot. for Prel. Inj.). 21 22 I. 23 BACKGROUND Factual Background, as Alleged. The pertinent facts are straightforward. Plaintiff Jane DeLeon, a citizen of

24 the Philippines, is a non-U.S. citizen and non-resident alien. See Compl. 19. She 25 came to the United States in 1989 on a non-immigrant visitors visa. See id. 20. 26 At the time she entered, she represented to federal authorities that she was married 27 to a Joseph Aranas, even though that was not true. See id. 22; Decision, U.S. 28 1

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1 Citizenship & Immigration Servs. at 3 (Sept. 1, 2011) (First USCIS Dec.), 2 attached as Ex. 2 to Mot. for Prel. Inj. 3 When Ms. DeLeon entered this country on or about June 19, 1989, she 4 was authorized to remain in the United States for a temporary period, not to 5 exceed December 18, 1989. First USCIS Dec. at 3.1 However, when December 6 18, 1989, arrived, Ms. DeLeon did not depart, even though she was legally 7 obligated to do so. Instead, she remained and has resided here continuously since 8 that time. Compl. 20. In other words, Ms. DeLeon illegally overstayed her 9 visitors visa for the next nearly 23 years and counting. Based on the record 10 before this Court, Ms. DeLeon has been an unlawfully present, undocumented 11 alien during that entire period of time. 12 In the years since, Ms. DeLeon twice has attempted to obtain legal status. 13 First, in March 2001, her U.S. citizen father filed and USCIS approved a 14 family-based immigrant petition on her behalf. See First USCIS Dec. at 3.2 Ms. 15 DeLeons father filed under a provision of the INA that allocates a certain number 16 of visas each year for unmarried sons and daughters of U.S. citizens. See 8 U.S.C. 17 1153(a)(1). However, because the INA also allocates the total number of family18 based immigrant visas available each year, see id. 1151(c), on a per country basis 19 by fixing quotas, see id. 1152(a)(2) and because the preference category under 20 which Ms. DeLeons fathers petition was approved is heavily oversubscribed for 21 citizens of the Philippines Ms. DeLeon has not yet been able to adjust her status 22 to that of a permanent resident because her priority date (March 19, 2001) has not 23 24 25 27 28 2
At the time, the maximum period of validity for a visitors visa was not more than one year. 8 C.F.R. 214.2(b)(1) (1989).
2 1

At the time, the responsibilities currently assigned to USCIS were carried out by the Immigration and Naturalization Service (INS). The INS ceased to exist in 2003, as a result of 26 the enactment of the Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002).

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1 yet become current.3 (In time, of course, Ms. DeLeons priority date will become 2 current and she will be able to adjust her status to that of a permanent resident). 3 Second, in March 2006, an employer (Promax Systems) filed an 4 employment-based immigrant visa petition on behalf of Ms. DeLeon; that petition 5 also was approved. See Compl. 26; First USCIS Dec. at 2. However, Ms. 6 DeLeon was statutorily ineligible to adjust her status to that of a lawful permanent 7 resident because she was not then in a lawful nonimmigrant status, 8 U.S.C. 8 1255(c)(7), and because she had misrepresented a material fact at the time of her 9 initial entry in 1989, see 8 U.S.C. 1182(a)(6)(C)(i); Compl. 27; First USCIS 10 Dec. at 3. 11 Ms. DeLeon nevertheless applied for adjustment of status in 2007. See 12 Compl. 26; First USCIS Dec. at 3. USCIS, predictably, advised her that she 13 appeared to be ineligible because she had misrepresented a material fact at the time 14 of her initial entry in 1989. See Compl. 27; First USCIS Dec. at 3. However, 15 USCIS also advised Ms. DeLeon that she might be eligible for a waiver of such 16 inadmissibility if she could establish that denial of her application for adjustment 17 of status would result in extreme hardship to her U.S. citizen father. See Compl. 18 28; First USCIS Dec. at 3; see also 8 U.S.C. 1182(i)(1) (providing Attorney 19 General with discretion to waive inadmissibility in certain cases if alien established 20 that refusal of admission . . . would result in extreme hardship to . . . [a] parent of 21 the alien). 22 Ms. DeLeon then applied for such a waiver in July 2011, see Compl. 29; 23 First USCIS Dec. at 3, and, in September 2011, USCIS denied that waiver 24 25 http://www.travel.state.gov/visa/bulletin/bulletin_5759.html (visas currently available for 26 citizens of the Philippines, who are unmarried sons and daughters of U.S. citizens, with priority
dates on or before Nov. 8, 1994).
3

See U.S. Dept of State, Visa Bulletin for Sept. 2012, at 2, available at

27 28 3

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1 application on the ground that Ms. DeLeon had failed to establish that denial of her 2 application would cause extreme hardship to her U.S. citizen father (who 3 apparently resided a significant portion of the time in the Philippines). See id.; 4 Compl. 30; Decision, U.S. Citizenship & Immigration Servs. at 1 (Nov. 9, 2011) 5 (Second USCIS Dec.), attached as Ex. 1 to Mot. for Prel. Inj. At the same time, 6 USCIS also denied Ms. DeLeons application for adjustment of status. See id.; 7 First USCIS Dec. at 3-4. 8 In the meantime, in August 2008, Ms. DeLeon and plaintiff Irma Rodriguez 9 (a United States citizen) obtained a marriage certificate from the state of 10 California. See Second USCIS Dec. at 3 (identifying August 28, 2008 marriage 11 date); Compl. 2, 8, 9, 25 (identifying August 22, 2008 marriage date). As a 12 result, Ms. DeLeon moved on September 27, 2011, for reconsideration of the 13 denial of her waiver application on the ground that denial of her application for 14 adjustment of status would cause extreme hardship to Ms. Rodriguez. See id. 32. 15 USCIS denied that motion in November 2011 on the basis of DOMA Section 3. 16 See id. 37; Second USCIS Dec. at 2. USCIS did not reach the question of 17 whether Ms. DeLeon had established extreme hardship to Ms. Rodriguez, even 18 assuming that DOMA Section 3 did not otherwise bar the reconsideration that Ms. 19 DeLeon sought. See id. 20 II. Procedural Background. 21 Eight months later, Ms. DeLeon, Ms. Rodriguez, and Martin Aranas (Ms. 22 DeLeons biological son, see Compl. 10), filed this lawsuit. The three Plaintiffs 23 for themselves and purportedly on behalf of a class consisting of [a]ll members 24 of lawful marriages whom the Department of Homeland Security, pursuant to 3 25 of [DOMA], refuses to recognize as spouses for purposes of conferring lawful 26 status and related benefits under the [INA] . . . , id. 14 allege that DOMA 27 Section 3, as applied to them (and others similarly situated), violates their Fifth 28 4

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1 Amendment equal protection and substantive due process rights by refusing 2 to recognize their lawful marriages for purposes of conferring family-based 3 immigration waivers and benefits. Id. 3, 4, 69-70 (equal protection), 71-73 4 (substantive due process). 5 6 A. Houses Motion to Dismiss. The House now has moved to dismiss Plaintiffs two Fifth Amendment

7 claims for lack of subject matter jurisdiction and for failure to state a claim. 8 Plaintiffs lack standing, and thus this Court lacks subject matter jurisdiction, for 9 their challenge to DOMA Section 3 because they have failed also to challenge the 10 constitutionality of an independent statutory provision that bars them from 11 obtaining the relief they demand. That statutory provision is Section 212(i)(1) of 12 the INA, 8 U.S.C. 1182(i)(1), under which Ms. DeLeon seeks a waiver of the 13 denial of her application to adjust her status. See supra pp. 3-4. Section 212(i)(1) 14 applies, however, only to a spouse, and the Ninth Circuit, in Adams v. Howerton, 15 673 F.2d 1036, 1039-41 (9th Cir. 1982), previously concluded, as a matter of 16 statutory construction, that the INAs use of the term spouse is limited to an 17 opposite sex spouse. Accordingly, Plaintiffs claims fail before ever reaching the 18 statute that they do challenge, DOMA Section 3. See infra pp. 19-20. 19 With respect to Plaintiffs equal protection claim, controlling Supreme Court 20 and Ninth Circuit authority squarely foreclose that claim. In Baker v. Nelson, 409 21 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), the Supreme Court summarily 22 rejected the argument that equal protection principles require the extension of 23 marriage rights to same-sex couples. And, in Adams, 673 F.2d 1036, the Ninth 24 Circuit held that limiting immigration benefits to opposite-sex spouses does not 25 violate equal protection principles even if a state regards the couple as married. 26 See infra pp. 21-25. 27 28 5

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In addition, even if this Court were able to ignore Baker and Adams (which

2 it decidedly is not), it still would be obliged to dismiss Plaintiffs equal protection 3 claim because sexual orientation classifications like DOMA Section 3 are 4 subject to rational basis review, see, e.g., High Tech Gays v. Def. Indus. Sec. 5 Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990); Witt v. Dept of the Air 6 Force, 527 F.3d 806, 821 (9th Cir. 2008), and there are numerous rational bases 7 that support DOMA Section 3. See infra pp. 25-47. Indeed, even the Department 8 of Justice (DOJ), which infamously has abandoned its constitutional 9 responsibility to defend Section 3 in this and related cases, acknowledges that the 10 statute satisfies rational basis scrutiny. See infra p.17 n.7. 11 Plaintiffs substantive due process claim based on the notion that DOMA 12 Section 3 burden[s] the integrity of their lawful marriage and their most intimate 13 family relationships, Compl. 72 fares no better. First, Plaintiffs have 14 described their asserted liberty interest far too broadly. Under controlling Supreme 15 Court and Ninth Circuit case law, the courts must adopt a narrow definition of the 16 interest at stake, and Plaintiffs actual interest here an interest in obtaining the 17 reopening of their waiver application is not even remotely a fundamental liberty 18 interest protected by the substantive due process component of the Fifth 19 Amendment. Second, even assuming that Plaintiffs properly have described their 20 interest here and that such an interest is fundamental, DOMA Section 3 does not 21 infringe the integrity of their lawful marriage and their most intimate family 22 relationships. Compl. 72. That is, DOMA Section 3 neither bars anyone from 23 any conduct nor bars anyone from forming any familial relationship, including 24 marriage. Even DOJ continues to recognize that DOMA Section 3 does not 25 infringe any substantive due process rights. See infra pp. 47-53. 26 27 28 6

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1 2

B.

Plaintiffs Motion for Preliminary Injunction.

Plaintiffs, for their part, have moved for a preliminary injunction in which

3 they ask the Court to enjoin the Executive Branch defendants from: 4 1) removing or detaining plaintiffs DeLeon, Arenas [sic] and unnamed 5 members of the plaintiff class; 6 2) denying employment authorization to plaintiffs DeLeon, Arenas [sic] and 7 unnamed members of the plaintiff class; 8 3) issuing final administrative denials of applications or petitions filed under 9 the [INA] solely because the petitioners or applicants lawful spouse is of the same sex; 10 11 12 13 14 15 16 4) deeming plaintiffs DeLeon and Arenas [sic] and unnamed members of the plaintiff class inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B)(i), where such persons would not have accrued more than six months in unlawful status but for 3 of [DOMA]; and 5) failing to timely provide those in same sex marriages filing applications or petitions under the INA based upon their same sex marriages with notice of this Order.

4 17 [Proposed] Prel. Inj. at 3-4 (Aug. 23, 2012) (ECF No. 12-1). Because the House now has moved to dismiss, the Court need not reach 18

19 Plaintiffs preliminary injunction motion. However, if the Court does reach that 20 motion, it should deny it. 21 Plaintiffs are asking this Court to enter a preliminary order that would, on a 22 nation-wide basis, completely suspend the operation of DOMA Section 3 in the immigration context (as well as the operation of the immigration laws themselves 23 as construed by the Ninth Circuit in Adams), and substantially impair the Executive 24 25 27 28 7
The Executive Branch defendants have refused to inform the House whether they will oppose Plaintiffs preliminary injunction motion. See Reply to Pls. Resp. to Mot. of [House] . . . 26 at 4-5 (Sept. 7, 2012) (ECF No. 28).
4

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1 Branchs enforcement of the nations immigration laws. Plaintiffs seek this 2 astonishingly broad and far-reaching relief even though (i) they cannot establish, as 3 Ninth Circuit law requires, a likelihood of success on the merits for all the reasons 4 articulated below in support of the Houses motion to dismiss, see infra pp. 19-54; 5 (ii) two courts in this district already have rejected, on the merits, claims that are 6 substantively indistinguishable from the claims Plaintiffs assert here, see Lui 7 Order; Torres-Barragan Order, and (iii) Plaintiffs irreparable harm argument is 8 wholly unsupported by any affidavits and consists, in its entirety, of the bald 9 assertion that DOMA Section 3 relegates plaintiffs DeLeon and Aranas to the 10 status of undocumented aliens, with all the disabilities attendant thereto; 11 joblessness or employment without authorization, possible deportation or removal, 12 acquisition of unlawful presence time which bars future admission for ten years, 13 inability to obtain or renew drivers licenses, and the trauma of living under 14 constant threat of arrest and separation from family. Mot. for Prel. Inj. at 22-23. 15 As we explain below, that argument fails because DOMA Section 3 causes 16 Plaintiffs none of their asserted harms; rather, those asserted harms are the 17 consequence of Ms. DeLeons status as an undocumented alien. Any injunction 18 would upset that status quo. Further, Plaintiffs allege no facts, and certainly do not 19 offer evidence, suggesting that Ms. DeLeon and/or Mr. Aranas are in any imminent 20 danger of any adverse action. See infra pp. 55-60.5 21 III. Legal Background. 22 24 25 Provisional Class Certification (Aug. 23, 2012) (ECF No. 13). The House understands that the 26 Executive Branch defendants intend to respond to this motion a motion that the Court need not
reach in light of the Houses motion to dismiss.
5

DOMA Section 3 defines marriage and spouse for purposes of federal

23 law as follows:
Plaintiffs also have moved for certification of a class. See Notice of Mot. & Mot. for

27 28 8

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. Section 3 codifies and confirms what Congress always has meant in using the words marriage and spouse. 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)(2), 42 Stat. 227, 250 (permitting a husband and wife living together to file a joint tax return); see also The Family and Medical Leave Act, 60 Fed. Reg. 2,180, 2,190-91 (1995) (final rule) (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 . . . .), affd, 673 F.2d 1036 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 314, 63 USLW 307 (D.C. 1995) (Congress, in enacting D.C. marriage statute, intended that marriage is limited to opposite-sex couples). Congress has a long history of defining marital terms for purposes of federal law. See, e.g., 38 U.S.C. 101(31) (for purposes of certain veterans benefits, spouse means a person of the opposite sex who is a wife or husband); 26 U.S.C. 7703(b) (excluding some couples living apart from marriage for tax purposes regardless of state-law status); 42 U.S.C. 416 (detailed definitions of spouse, wife, husband, widow, widower, and divorce for socialsecurity purposes, inevitably varying from state definitions); 5 U.S.C. 8101(6), (11), 8341(a)(1)(A), (a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. 9

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1 1186a(b)(1) (anti-fraud criteria in immigration law). Congress at various times has 2 enacted comprehensive regulations of marriage: For instance, it banned polygamy 3 in U.S. territories. Morrill Anti-Bigamy Act, ch. 126, 1, 12 Stat. 501, 501 (1862) 4 (codified as amended at U.S. Rev. Stat. 5352) (repealed prior to codification in 5 U.S.C.); 150 Cong. Rec. 15318 (2004) (Sen. Inhofe) (Congress would not admit 6 Utah into the Union unless it abolished polygamy and committed to the common 7 national definition of marriage as one man and one woman.); see Reynolds v. 8 United States, 98 U.S. 145, 165-67, 25 L. Ed. 244 (1878). 9 Congress designed DOMA to apply comprehensively to all manner of 10 federal programs that confer benefits, and impose burdens, on the basis of marital 11 status. According to the Government Accountability Office (G.A.O.), as of 12 2004, there were 1,138 provisions in the U.S. Code in which marital status is a 13 factor in determining or receiving benefits, rights, and privileges. Letter from 14 G.A.O., to Senator Bill Frist 1 (Jan. 23, 2004), GAO-04-353R, Defense of 15 Marriage Act, http://www.gao.gov/new.items/d04353r.pdf. DOMA reaffirms the 16 definition of marriage already reflected in prior statutes, namely, the traditional 17 definition of marriage as between one man and one woman. 18 19 A. DOMAs Legislative Branch History. The 104th Congress enacted DOMA in 1996 with overwhelming, bipartisan

20 support. DOMA passed by a vote of 342-67 in the House and 85-14 in the Senate. 21 See 142 Cong. Rec. 17093-94 (1996) (House vote); id. at 22467 (Senate vote). In 22 all, 427 Members of Congress voted for DOMA. President Clinton signed DOMA 23 into law on September 21, 1996. See 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 24 1996). 25 DOMA was enacted in response to the Hawaii Supreme Courts opinion in 26 Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530 (Haw. 1993), which held that the denial 27 of a marriage license to a same-sex couple was subject to strict scrutiny under the 28 10

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1 Hawaii Constitution. See H.R. Rep. No. 104-664 at 4-5 (1996) (House Rep.). 2 The Hawaii courts appear[ed] to be on the verge of requiring that State to issue 3 marriage licenses to same-sex couples. Id. at 2. DOMA was enacted to preserve 4 the federal-law status quo in light of Baehr. Section 2 of DOMA addressed a 5 concern about the Hawaii decision being given preclusive effect in other states. 6 With Section 3, Congress ensured that, no matter what any state might do to 7 redefine marriage as a matter of state law, the definition for purposes of federal law 8 would remain, as it always has been, the union of one man and one woman. 9 The legislative history confirms that, even in statutes enacted before DOMA, 10 Congress never intended for the word marriage to include same-sex couples. See 11 id. at 10 ([I]t can be stated with certainty that none of the federal statutes or 12 regulations that use the words marriage or spouse were thought by even a single 13 Member of Congress to refer to same-sex couples.); id. at 29 (Section 3 merely 14 restates the current understanding of what those terms mean for purposes of federal 15 law.); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (Section 3 changes nothing; 16 it simply reaffirms existing law.). In enacting DOMA, Congress was concerned 17 with more than semantics: It intended to ensure that the meaning of existing 18 federal statutes, and the legislative judgments of earlier Congresses, would be 19 respected. See Defense of Marriage Act: Hearing on H.R. 3396 Before the 20 Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 32 21 (1996) (House Hrg) (Rep. Sensenbrenner) (When all of these benefits were 22 passed by Congressand some of them decades agoit was assumed that the 23 benefits would be to the survivors or to the spouses of traditional heterosexual 24 marriages . . . .). It also intended to protect the ability of each sovereign to define 25 terms such as marriage and spouse for purposes of its own law. To that end, 26 Section 2 of DOMA clarified that full faith and credit does not require states to 27 recognize foreign same-sex marriages even if Hawaii or some other state chose to 28 11

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1 do so; and Section 3 reaffirmed the United States authority, as a separate 2 sovereign in our federal system, to define marriage for purposes of federal law, 3 regardless of how states might choose to redefine it under their own law. 4 During its deliberations over DOMA, Congress emphasized [t]he enormous 5 importance of marriage for civilized society. House Rep. at 13 (quoting Council 6 on Families in America, Marriage in America: A Report to the Nation 10 (1995)). 7 The House Report quoted approvingly from Murphy v. Ramsey, 114 U.S. 15, 45, 5 8 S. Ct. 747, 29 L. Ed. 47 (1885), in which the Supreme Court referred to the idea 9 of the family, as consisting in and springing from the union for life of one man and 10 one woman in the holy estate of matrimony; the sure foundation of all that is stable 11 and noble in our civilization. Id. at 12; see also 142 Cong. Rec. 16799 (1996) 12 (Rep. Largent); id. at 16970 (Rep. Hutchinson) (marriage has been the foundation 13 of every human society); id. at 22442 (Sen. Gramm) (There is no moment in 14 recorded history when the traditional family was not recognized and sanctioned by 15 a civilized society . . . .); id. at 22454 (Sen. Burns) ([M]arriage between one man 16 and one woman is still the single most important social institution.). 17 Congress also recognized that, historically in American law, the institution 18 of marriage consisted of the union of one man and one woman. See House Rep. at 19 3 ([T]he uniform and unbroken rule has been that only opposite-sex couples can 20 marry.); House Hrg at 1 (statement of Rep. Canady) (Simply stated, in the 21 history of our country, marriage has never meant anything else.); 142 Cong. Rec. 22 16796 (1996) (Rep. McInnis) (If we look at any definition, whether it is Blacks 23 Law Dictionary, whether it is Websters Dictionary, a marriage is defined as [a] 24 union between a man and a woman, and that should be upheld . . . .). This 25 historical definition was by no means a singling out of homosexual relationships. 26 Rather, it identified one type of relationship (traditional marriage) as especially 27 important, and excluded every other kind of relationship from the definition of 28 12

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1 marriage. And Congress concluded that such an important institution should not 2 be radically redefined at the federal level to include same-sex relationships. 3 Senator Dorgan expressed the views of many Members of Congress when he 4 stated: For thousands of years, marriage has been an institution that represents a 5 union between a man and a woman, and I do not support changing the definition of 6 marriage or altering its meaning. Id. at 23186; see id. at 22452 (Sen. Mikulski) 7 (DOMA is about reaffirming the basic American tenet of marriage). 8 Congress also expressed concern that expanding marital benefits to same-sex 9 couples would create great fiscal uncertainty and strain in a manner not foreseen by 10 the Congresses that originally enacted those benefits. See House Rep. at 18 11 (legislative response to same-sex marriage necessary to preserve scarce 12 government resources). It desired to avoid a huge expansion in marital benefits, 13 142 Cong. Rec. 17072 (1996) (Rep. Sensenbrenner), which ha[d] not been planned 14 or budgeted for under current law, id. at 22443 (1996) (Sen. Gramm). Congress 15 was concerned that state recognition of same-sex marriages would create . . . a 16 whole group of new beneficiariesno one knows what the number would be . . . 17 who will be beneficiaries of newly created survivor benefits under Social Security, 18 Federal retirement plans, and military retirement plans, id., and that these additional 19 costs had not even been calculated, let alone weighed, in the earlier legislative 20 debates that preceded the enactment of those programs, see id. at 22448 (Sen. Byrd) 21 ([T]hink of the potential cost involved . . . .). 22 In clarifying a single definition of marriage to govern all federal laws, 23 Congress decided that eligibility for federal benefits should not vary 24 geographically depending on how the several states might choose to define 25 marriage. As Senator Ashcroft stated, a federal definition is very important, 26 because unless we have a Federal definition of what marriage is, a variety of States 27 around the country could define marriage differently . . . , people in different States 28 13

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1 would have different eligibility to receive Federal benefits, which would be 2 inappropriate. Id. at 22459. 3 Congress also explained that marriage is afforded a special legal status 4 because only a man and a woman can beget a child together, and because historical 5 experience has shown that a family consisting of a married father and mother 6 particularly the childs own biological mother and father is an effective social 7 structure for raising children. For example, the House Report states that the reason 8 society recognizes the institution of marriage and grants married persons preferred 9 legal status is that it has a deep and abiding interest in encouraging responsible 10 procreation and child-rearing. House Rep. at 12, 13. Many Members of Congress 11 supported DOMA on that basis. See, e.g., 142 Cong. Rec. 22446 (1996) (Sen. Byrd) 12 (The purpose of this kind of union between human beings of opposite gender is 13 primarily for the establishment of a home atmosphere in which a man and a woman 14 pledge themselves exclusively to one another and who bring into being children for 15 the fulfillment of their love for one another and for the greater good of the human 16 community at large.); House Hrg at 1 (Rep. Canady) ([Marriage] is inherently 17 and necessarily reserved for unions between one man and one woman. This is 18 because our society recognizes that heterosexual marriage provides the ideal 19 structure within which to beget and raise children.); 142 Cong. Rec. 17081 (1996) 20 (Rep. Weldon) ([M]arriage of a man and woman is the foundation of the family. 21 The marriage relationship provides children with the best environment in which to 22 grow and learn.). 23 Congress received and considered advice on DOMAs constitutionality, 24 including thrice from DOJ, and determined that DOMA is constitutional. See, e.g., 25 House Rep. at 33 (DOMA plainly constitutional); id. at 33-34 (letters to House 26 from DOJ advising that DOMA is constitutional); House Hrg at 87-117 27 (testimony of Professor Hadley Arkes); Defense of Marriage Act: Hearing on S. 28 14

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1 1740 Before the S. Comm. on the Judiciary, 104th Cong. 1, 2 (1996) (Senate 2 Hrg) (Sen. Hatch) (DOMA is a constitutional piece of legislation); id. at 2 3 (DOJ letter to Senate advising that DOMA is constitutional); id. at 56-59 (letter 4 from Professor Michael W. McConnell) (advising that DOMA is constitutional); 5 cf. 150 Cong. Rec. 14942 (2004) (Sen. Hatch) (considering constitutionality of 6 Constitutional amendment to definition of marriage). 7 8 B. DOMAs Executive Branch History. During the Clinton administration, DOJ three times advised Congress that

9 DOMA was constitutional, as referenced immediately above, stating, for example, 10 that it continues to believe that [DOMA] would be sustained as constitutional if 11 challenged in court, and that it does not raise any legal issues that necessitate 12 further comment by the Department. . . . [T]he Supreme Courts ruling in Romer 13 v. Evans does not affect the Departments analysis. Letter from Andrew Fois, 14 Asst Atty Gen., to Hon. Charles T. Canady (May 29, 1996), reprinted in House 15 Rep. at 34; see also Letters from Andrew Fois, Asst Atty Gen., to Hon. Henry J. 16 Hyde (May 14, 1996), reprinted in House Rep. at 33, and to Hon. Orrin G. Hatch 17 (July 9, 1996), reprinted in Senate Hrg at 2. 18 During the Bush administration, DOJ successfully defended DOMA against 19 several constitutional challenges, prevailing in every case that reached final 20 judgment. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), 21 affd in part and vacated in part for lack of standing, 477 F.3d 673 (9th Cir. 2006); 22 Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) 23 (granting voluntary dismissal after defendants moved to dismiss); Hunt v. Ake, No. 24 04-cv-1852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35); Wilson v. Ake, 354 F. Supp. 25 2d 1298 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004). 26 28 And, during the first two years of the Obama administration, DOJ continued 15 27 to defend DOMA (albeit without defending all of Congresss stated justifications

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1 for the law). The Obama DOJ obtained another victory for DOMA in this district. 2 See Torres-Barragan Order. In February 2011, however, DOJ abruptly reversed 3 course. The Attorney General notified Congress that DOJ had decided to forgo 4 the defense of DOMA. Letter from Eric H. Holder, Jr., Atty Gen., to Hon. John 5 A. Boehner, Speaker, U.S. House of Representatives, at 5 (Feb. 23, 2011) (Holder 6 Letter), attached to [Dept] Notice to the Ct. (July 25, 2012) (ECF No. 5-2). The 7 Attorney General stated that he and the President now are of the view that a 8 heightened standard [of review] should apply [to DOMA], that Section 3 is 9 unconstitutional under that standard and that the Department will cease defense of 10 Section 3. Id. at 6. In so concluding, the Attorney General acknowledged that: 11 12 13 14 15 16 17 18 19 (1) at least ten federal courts of appeals (the exact number was eleven) have issued binding 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 appropriately due to a coequal branch of government, DOJ has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, id. at 5; and (3) in fact, a reasonable argument for Section 3s constitutionality may be proffered under that permissive [rational basis] standard, id. at 6 (emphasis added).

20 In short, the Attorney General effectively conceded that abandoning the defense of 21 DOMA Section 3 was a sharp departure from past precedent and was not 22 predicated primarily on constitutional or other legal considerations. 23 Notwithstanding its abandonment of its constitutional responsibility for 24 defending DOMA Section 3, DOJ nonetheless repeatedly has affirmed that there is 25 26 27 28 16

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1 a rational basis for the statute,6 and that Section 3 does not violate the substantive 2 due process component of the Fifth Amendment.7 3 4 I. 5 6 Motion to Dismiss. A. Rule 12(b)(1): Subject Matter Jurisdiction. Standing is an essential element of federal-court subject matter STANDARDS OF REVIEW

7 jurisdiction. Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 8 (D. Ariz. 1996); see also, e.g., City of S. Lake Tahoe v. Cal. Tahoe Regl Planning 9 Agency, 625 F.2d 231, 233 (9th Cir. 1980). A plaintiff lacks standing where her 10 alleged injury could not be redressed by the relief that she seeks. See, e.g. Lujan v. 11 Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 12 (1992) ([T]he irreducible constitutional minimum of standing contains three 13 elements. First, the plaintiff must have suffered an injury in fact . . . . Second, 14 there must be a causal connection between the injury and the conduct complained 15 of . . . . Third, it must be likely, as opposed to merely speculative, that the injury 16 6 17 Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 18 as the government has previously stated, a reasonable argument for the constitutionality of
See, e.g., Superseding Br. for the U.S. Dept of Health & Human Servs. at 46 n.20, 2011) (ECF No. 5582082) ([I]f this Court holds that rational basis is the appropriate standard, DOMA Section 3 can be made under that permissive standard.); Fed. Defs. Br. In Partial Supp. n.14, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF
7

19 of Pls. Mot. for Summ. J. at 19 n.14, Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 20 (N.D. Cal. Jan. 1, 2012) (ECF No. 108) (same); Defs. Br. in Oppn to Mots. to Dismiss at 18 21 No. 145) (same). 22 23 24 25 26 27 28 17

See, e.g., Reply Br. for the Office of Pers. Mgmt. at 17-21, Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 31, 2012) (ECF No. 149); Fed. Defs. Reply in Supp. of Their Cross-Mot. for Summ. J. at 9-11, Dragovich v. U.S. Dept of Treasury, No. 4:10cv-01564 (N.D. Cal. Apr. 12, 2012) (ECF No. 121); Fed. Defs. Oppn to Pls. Mot. for Summ. J. . . . at 9-14, Dragovich (N.D. Cal. Feb. 21, 2012) (ECF No. 114); Br. of the United States Regarding the Constitutionality of Section 3 of DOMA at 5 n.3, Cozen OConnor v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. United States . . . to [Houses] Cross-Mot. for Summ. J. at 3-4 n.4, Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225).

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1 will be redressed by a favorable decision. The party invoking federal jurisdiction 2 bears the burden of establishing these elements. (quotation marks omitted)). 3 4 B. Rule 12(b)(6): Failure to State a Claim. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests

5 the legal sufficiency of the complaint. Hamilton v. City of San Bernardino, 107 6 F. Supp. 2d 1239, 1241 (C.D. Cal. 2000) (citing Rutman Wine Co. v. E. & J. Gallo 7 Winery, 829 F.2d 729, 738 (9th Cir. 1987)). Claims should be dismissed . . . 8 when there is either a lack of a cognizable legal theory or the absence of sufficient 9 facts alleged under a cognizable legal theory. Shabani v. Classic Design Servs., 10 Inc., 699 F. Supp. 2d 1138, 1141 (C.D. Cal. 2010) (quoting Balistreri v. Pacifica 11 Police Dept, 901 F.2d 696, 699 (9th Cir. 1988)). Thus, the Court properly may 12 grant a Rule 12(b)(6) motion if it is clear from the face of the complaint, judicially13 noticed documents, and cognizable non-adjudicate facts that the plaintiff(s) cannot 14 prevail as a matter of law. 15 While [t]he court must accept all factual allegations pleaded in the 16 complaint as true, . . . [i]t need not . . . accept as true unreasonable inferences or 17 conclusory legal allegations cast in the form of factual allegations. Izenberg v. 18 ETS Servs., LLC, 589 F. Supp. 2d 1193, 1198 (C.D. Cal. 2008) (citing Bell Atl. 19 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Cahill 20 v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 21 F.3d 747, 750 (9th Cir. 1995)). 22 II. 23 Motion for Preliminary Injunction. [T]he issuance of a preliminary injunction [rest] upon a clear showing of

24 either (1) probable success on the merits and possible irreparable injury, or (2) 25 sufficiently serious questions going to the merits to make them a fair ground for 26 litigation and a balance of hardships tipping decidedly toward the party requesting 27 28 18

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1 the preliminary relief. Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496, 502 (9th 2 Cir. 1980) (emphasis added). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I. ARGUMENT Plaintiffs Lack Standing to Challenge DOMA Section 3. Plaintiffs lack standing to challenge DOMA Section 3 because Ms. DeLeon is not a spouse within the meaning of the statutory provision under which she seeks relief (i.e., under which she seeks a waiver of the denial of her application to adjust her status, see supra pp. 3-4), namely: Section 212(i)(1) of the INA, 8 U.S.C. 1182(i)(1). In Adams, 673 F.2d at 1039-41, the Ninth Circuit considered the meaning of the same term spouse from the same statute the INA. The Adams Court considered that term in the context of the INAs definition of immediate relatives, INA 201(b), 8 U.S.C. 1151(b), which definition identifies a spouse as such an immediate relative[]. The Adams Court considered the INA as a whole and its legislative history, concluding that spouse refers only to opposite-sex spouses. See 673 F.2d at 1039-40 (It is clear to us that Congress did not intend the mere validity of a marriage under state law to be controlling.). For the same reasons that INA Section 201(b), 8 U.S.C. 1151(b), did not refer to same-sex spouses in using the term spouse, INA Section 212(i)(1), 8 U.S.C. 1182(i)(1), does not do so. See, e.g., Adams, 673 F.2d at 1040 (As our duty is to ascertain and apply the intent of Congress, we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole.). As noted supra pp. 913, Congress always has used the term spouse to refer only to traditional,

25 opposite-sex spouses, and certainly that was the case at the enactment of INA 26 Section 212(i)(1), 8 U.S.C. 1182(i)(1) in 1961. 27 28 19

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Plaintiffs, however, fail to challenge the constitutionality of INA Section

2 212(i)(1), 8 U.S.C. 1182(i)(1). Because that statutory provision independently 3 forecloses their claims for relief, Plaintiffs alleged injuries would not be redressed 4 even if their legal arguments against DOMA Section 3 prevailed, and Plaintiffs 5 therefore lack standing to challenge DOMA Section 3. See, e.g., McConnell v. 6 FEC, 540 U.S. 93, 229, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (challenge to 7 constitutionality of particular statutory provision fails where other, unchallenged 8 statutory provisions independently bar plaintiffs from requested relief); Renne v. 9 Geary, 501 U.S. 312, 319, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) (noting, in 10 First Amendment challenge to local governments removal of party endorsements 11 from materials submitted by political candidates for distribution by county, that 12 there was reason to doubt . . . that the injury alleged by these voters can be 13 redressed by a declaration of [the ordinance]s invalidity or an injunction against 14 its enforcement because a separate and unchallenged state statute likely also 15 required the redaction); Nuclear Info. & Res. Serv. v. Nuclear Reg. Commn, 457 16 F.3d 941, 955 (9th Cir. 2006); see generally Lujan, 504 U.S. at 560-61. 17 II. Congressional Enactments Are Entitled to a Strong Presumption of 18 Constitutionality. 19 Duly enacted federal laws are entitled to a strong presumption of 20 constitutionality. [J]udging the constitutionality of an Act of Congress is the 21 gravest and most delicate duty that th[e] Court[s] [are] called on to perform. Nw. 22 Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204, 129 S. Ct. 2504, 174 23 L. Ed. 2d 140 (2009) (quotation marks omitted). The Congress is a coequal branch 24 of government whose Members take the same oath we do to uphold the Constitution 25 of the United States. Id. at 205 (quotation marks omitted). Because [a] ruling of 26 unconstitutionality frustrates the intent of the elected representatives of the people, 27 Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. Ct. 3262, 82 L. Ed. 2d 487 (1984), 28 20

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1 the Court[s] do[] and should accord a strong presumption of constitutionality to 2 Acts of Congress. This is not a mere polite gesture. It is a deference due to 3 deliberate judgment by constitutional majorities of the two Houses of Congress that 4 an Act is [constitutional]. United States v. Five Gambling Devices, 346 U.S. 441, 5 449, 74 S. Ct. 190, 98 L. Ed. 179 (1953) (plurality). This deference is certainly 6 appropriate when, as here, Congress specifically considered the question of the Acts 7 constitutionality, Rostker v. Goldberg, 453 U.S. 57, 64, 101 S. Ct. 2646, 69 L. Ed. 8 2d 478 (1981); see supra pp. 14-15, and must be afforded even though the claim is 9 that a statute violates the Fifth Amendment, Walters v. Natl Assn of Radiation 10 Survivors, 473 U.S. 305, 319-20, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985). 11 III. 12 13 14 DOMA Section 3 Satisfies Equal Protection Principles. A. Binding Supreme Court and Ninth Circuit Precedent Foreclose an Equal Protection Challenge to Traditional Marriage Provisions.

This Court has no occasion to undertake the grave and delicate task of

15 considering the constitutionality of an Act of Congress because binding Supreme 16 Court and Ninth Circuit precedent forecloses an equal protection challenge to 17 DOMA Section 3. No matter how a court might view those provisions as a matter 18 of first impression, the Supreme Court and Ninth Circuit already squarely have 19 held that defining marriage as between one man and one woman comports with 20 equal protection. Only those Courts can reconsider those determinations. 21 22 1. Binding Supreme Court Authority: Baker v. Nelson. In Baker, two men challenged a state law defining marriage as a union

23 between persons of the opposite sex, and the states denial of a marriage license 24 on the sole ground that [they] were of the same sex. Baker v. Nelson, 191 25 N.W.2d 185, 185-86, 291 Minn. 310 (Minn. 1971). The Minnesota Supreme Court 26 rejected their federal constitutional claims that the right to marry without regard 27 to the sex of the parties is a fundamental right . . . and that restricting marriage to 28 21

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1 only couples of the opposite sex is irrational and invidiously discriminatory. Id. 2 at 186. 3 The two men appealed to the Supreme Court under former 28 U.S.C. 4 1257(2) (repealed in 1988). They argued the question [w]hether appellees 5 refusal, pursuant to Minnesota marriage statutes, to sanctify appellants marriage 6 because both are of the male sex violates their rights under the equal protection 7 clause of the Fourteenth Amendment. Jurisdictional Statement at 3, Baker v. 8 Nelson, No. 71-1027 (1972), attached as Exhibit A hereto. In addition to arguing 9 that the State had engaged in unconstitutional sex discrimination, id. at 16-17, the 10 plaintiffs argued that there is no justification in law for the discrimination against 11 homosexuals, and that they were similarly situated to childless heterosexual 12 couples and therefore entitled to the same benefits awarded by law, id. at 10. 13 The Supreme Court rejected these arguments, and summarily and unanimously 14 dismissed the appeal for want of a substantial federal question. Baker, 409 U.S. at 15 810. 16 Such a disposition is a decision on the merits, and no mere denial of 17 certiorari. Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 53 L. Ed. 2d 199 18 (1977) ([L]ower courts are bound by summary actions on the merits by this 19 Court.); Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S. Ct. 2281, 45 L. Ed. 2d 223 20 (1975). While the Courts certiorari jurisdiction is discretionary, its appellate 21 jurisdiction under 1257(2) was mandatory. Thus the Supreme Court had no 22 discretion to refuse to adjudicate [Baker] on its merits, Wilson, 354 F. Supp. 2d at 23 1304, and its dismissal[] for want of a substantial federal question without doubt 24 reject[ed] the specific challenges presented in the statement of jurisdiction, 25 Mandel, 432 U.S. at 176 i.e., the contention that prohibiting same-sex marriages 26 violates equal protection. 27 28 22

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Because Baker holds that a state may define marriage as the union of one

2 man and one woman without violating the Fourteenth Amendments equal 3 protection clause, and because [the Supreme] Courts approach to Fifth 4 Amendment Equal Protection claims has always been precisely the same as to 5 equal protection claims under the Fourteenth Amendment, Adarand Constructors, 6 Inc. v. Pea, 515 U.S. 200, 217, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) 7 (quotation marks omitted), it necessarily follows that DOMA Section 3 does not 8 violate the equal protection component of the Fifth Amendment by defining 9 marriage in the manner that Baker found constitutional.8 10 Accordingly, because [t]he Supreme Court has not explicitly or implicitly 11 overturned its holding, Wilson, 354 F. Supp. 2d at 1305, this Court is obligated to 12 follow Baker. The relevant questions are not whether a majority of current Justices 13 would agree with Baker, or whether later cases suggest a different trend in the 14 Courts jurisprudence rather they are whether Baker is on point, which it is, and 15 whether it has been overturned by the Court, which it has not. Neither Romer v. 16 17 Baker from a situation in which the people of a state . . . by plebiscite strip a group of a right or 18 benefit . . . that they had previously enjoyed on terms of equality with all others in the state. Id.
at 1082 n.14; see also id. at 1076, 1082, 1087, 1090, 1096 (limiting Perry to its unique
8

In Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the Ninth Circuit distinguished

19 circumstances). The federal government, of course, has never has recognized same-sex

20 F.2d 54, 56 (8th Cir. 1976) (Baker requires holding of no constitutional violation where federal 21 Courts dismissal of the [Baker] appeal for want of a substantial federal question constitutes an 22 adjudication of the merits which is binding on the lower federal courts.); see also Adams, 673 23 24 25 26 27 28 23
government denied marital benefits to same-sex couple that obtained marriage license; Supreme

marriages and, instead, has acted to preserve the status quo. E.g., McConnell v. Nooner, 547

F.2d at 1039 n.2 (acknowledging Baker and binding nature of summary dismissal); Wilson, 354 F. Supp. 2d at 1305 (Baker binding precedent with dispositive effect requiring dismissal of equal protection challenge to DOMA); Adams, 486 F. Supp. at 1124 (Baker requires holding of no equal protection violation where federal government denied benefits to same-sex couple that obtained marriage license); Andersen v. King Cnty., 138 P.3d 963, 999 & n.19, 158 Wash. 2d 1 (Wash. 2006) (Baker binding in challenge to traditional marriage provision); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005) (same); In re Cooper, 592 N.Y.S.2d 797, 800, 187 A.D.2d 128 (N.Y. App. Div. 1993) (same).

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1 Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), nor Lawrence v. 2 Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), has undermined 3 Baker. In Lawrence decided after Romer the Supreme Court expressly 4 declined to reach the question whether the government must give formal 5 recognition to any relationship that homosexual persons seek to enter. Lawrence, 6 539 U.S. at 578; see also Witt, 527 F.3d at 821 (recognizing that Lawrence 7 declined to address equal protection). Indeed, Justice OConnor stated expressly 8 that statutes preserving the traditional institution of marriage remain valid. 9 Lawrence, 539 U.S. at 585 (OConnor, J., concurring). There is no warrant for 10 second-guessing the Lawrence Courts own statement about what it was and was 11 not deciding. It could not be clearer that Lawrence left Bakers holding 12 unimpaired. 13 In sum, lower courts are bound by summary decisions by [the Supreme] 14 Court until such time as the [Supreme] Court informs them they are not. Hicks, 15 422 U.S. at 344-45 (quotation marks and parentheses omitted); see also Tenet v. 16 Doe, 544 U.S. 1, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (2005) (Supreme Court 17 precedent binds lower courts until the Court overrules its own decision); Rodriquez 18 de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 19 L. Ed. 2d 526 (1989) (same). And the Supreme Court has declined to inform 20 anyone that Baker is no longer binding, which ends the matter here: DOMA 21 Section 3 plainly is constitutional under Baker. 22 23 2. Binding Ninth Circuit Authority: Adams v. Howerton. Even if Baker did not control here (which it does), Adams would. In Adams,

24 as noted supra pp. 19-20, the Ninth Circuit held that Congress intended the word 25 spouse in INA Section 201(b), 8 U.S.C. 1151(b), to mean a person of the 26 opposite sex. See 673 F.2d at 1040. The Ninth Circuit then held that the INAs 27 restriction of that term to opposite-sex spouses does not violate equal protection: 28 24

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1 Congresss decision to confer spouse status under section 201(b) only upon the 2 parties to heterosexual marriages has a rational basis and therefore comports with 3 the due process clause and its equal protection requirements. Id. at 1042.9 4 DOMA Section 3 is constitutional under Adams because it uses the same 5 definition of spouse and marriage upheld by the Ninth Circuit in that case. Given 6 the squarely controlling nature of Adams, as already acknowledged by two courts 7 in this district, see Lui Order at 3-4 & n.5; Torres-Barragan Order at 2, Plaintiffs 8 failure to address that precedent save in a single footnote, see Mot. for Prel. Inj. 9 at 16 n.17, is telling. Plaintiffs suggestion that this Court wish away controlling 10 precedent is, at best, an invitation to error. 11 12 13 B. Rational Basis Review Governs Any Equal Protection Challenge to DOMA Section 3.

Even if the constitutionality of DOMA Section 3 under equal protection

14 principles were an open question (which it is not), the statute would pass 15 constitutional muster because, as explained below, rational basis review applies 16 and is easily satisfied. 17 18 19 1. Rational Basis Review Governs Sexual Orientation Classifications.

Rational basis review governs Plaintiffs equal protection challenge to

20 DOMA Section 3 under controlling Supreme Court and Ninth Circuit precedent. 21 The recognized suspect classes are race, alienage, [and] national origin. City of 22 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. 23
9

24 e.g., Henriquez-Rivas v. Holder, 449 F. Appx 626, 633 (9th Cir. 2011) ([A] three-judge panels 25 (citation omitted)). Rather, Perry by its own terms dealt only with withdrawals of previously26 offered marriage rights. See supra p. 23 n.8. That is not what the statute in Adams did, and it
certainly is not what DOMA Section 3 does here. resolution of a legal issue in a published opinion binds all subsequent three-judge panels . . . .

Adams is not limited in any way by the Ninth Circuits recent decision in Perry. See,

27 28 25

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1 Ed. 2d 313 (1985). Classifications based on sex or illegitimacy are quasi-suspect. 2 Id. at 440-41. The Supreme Court has rejected many other proposed suspect and 3 quasi-suspect classes, such as (i) mental retardation, id. at 442-47; (ii) age, Mass. 4 Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); and 5 (iii) poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct. 6 1278, 36 L. Ed. 2d 16 (1973). It would be inappropriate for this Court to add to the 7 list of suspect and quasi-suspect classes, particularly in light of the Supreme 8 Courts binding decision in Baker. The Supreme Court has not expanded the list 9 since 1973, see Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 10 2d 583 (1973) (sex), and since that time no federal court has added to the list of 11 suspect and quasi-suspect classes without being reversed by a higher court. 12 Sexual orientation has never been viewed as a suspect or quasi-suspect 13 classification. [T]he Supreme Court has never ruled that sexual orientation is a 14 suspect classification for equal protection purposes. Citizens for Equal Prot. v. 15 Bruning, 455 F.3d 859, 866 (8th Cir. 2006). On the contrary, the Supreme Court 16 applied the rational basis test to a classification based on sexual orientation in 17 Romer v. Evans, 517 U.S. 620. And no fewer than eleven federal circuits, 18 including the Ninth Circuit, have held that homosexuals are not a suspect class. 19 See Witt, 527 F.3d at 821 (reaffirming applicability of rational basis review post20 Lawrence); High Tech Gays, 895 F.2d at 574 ([H]omosexuals do not constitute a 21 suspect or quasi-suspect class entitled to greater than rational basis scrutiny under 22 the equal protection component of the Due Process Clause of the Fifth 23 Amendment.); see also Perry, 671 F.3d at 1082, 1086-90 (applying rational basis 24 review).10 Even DOJ has continued to acknowledge that Ninth Circuit precedent 25
See also Massachusetts v. U.S. Dept of HHS, 682 F.3d 1, 9 (1st Cir. 2012) (declining 26 to treat homosexuals as suspect or quasi-suspect class), cert. pets. pending, Nos. 12-13, 12-15, & 12-97; Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Cook v. Gates, 528 F.3d 27 (Continued . . . .)
10

28

26

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1 requires application of rational basis scrutiny. See, e.g., [DOJ]s Br. in Partial 2 Supp. of Pls. Mot. for Summ. J. at 2, Dragovich v. U.S Dept of the Treasury, No. 3 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No. 108) (acknowledging High 4 Tech Gays as binding authority). 5 For this reason, the class of same-sex married couples affected by a 6 governmental definition of marriage as between a man and a woman does not 7 comprise a suspect or quasi-suspect class, as four federal courts already have held. 8 See Citizens for Equal Prot., 455 F.3d at 866-67; Wilson, 354 F. Supp. 2d at 13079 08; Smelt, 374 F. Supp. 2d at 874-75; In re Kandu, 315 B.R. at 144.11 10 11 12 42, 61-62 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763, 174 L. Ed. 13 2d 284 (2009); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 (10th Cir. 2008); Citizens for 14 state constitutional provision limiting marriage to opposite-sex couples] should receive rational15 (5th Cir. 2004); Lofton v. Secy of Dept of Children & Fam. Servs., 358 F.3d 804, 818 & n.16 Cir. 2004) ([A]ll of our 16 (11thhomosexuals as a suspect sister circuits that have considered the question have declined to treat class.; citing cases from the Fourth, Sixth, Seventh, Ninth, 17 Tenth, District of Columbia, and Federal Circuits), cert. denied, 543 U.S. 1081, 125 S. Ct. 869, 18 v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076
(Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103-04 (D.C. Cir. 1987); Natl Gay Task 160 L. Ed. 2d 825 (2005); Thomasson v. Perry, 80 F.3d 915, 927-28 (4th Cir. 1996); Ben-Shalom basis review under the Equal Protection Clause . . . .); Johnson v. Johnson, 385 F.3d 503, 532 Equal Prot., 455 F.3d at 866 (8th Cir.) ([W]e conclude for a number of reasons that [a particular

19 Force v. Bd. of Educn of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984), affd by an equally 20 divided ct., 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985) (per curiam). 21 Second Circuit and the Third Circuit, although the Second Circuit applied rational basis review 22 scrutiny. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998). 23
11

The only Courts of Appeals that have not specifically addressed this question are the

to a sexual orientation classification where the plaintiff did not seek application of heightened

Only one Article III court has held to the contrary: See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) (although holding that DOMA Section 3 violates 24 equal protection principles based on application of heightened scrutiny, reaching that result only by setting aside Baker and purporting to overrule Adams), appeal pending, 9th Cir., Nos. 1225 15388, 15-15409; pet. for cert. before j. pending, No. 12-16 (July 3, 2012), 2012 WL 596938; cf. 26 Pedersen v. Office of Personnel Mgmt., No. 3:10-cv-1750, -- F. Supp. 2d. -- , 2012 WL 3113883, at *35 (D. Conn. July 31, 2012) (concluding, in dicta, that heightened scrutiny would apply).

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This unanimous view of the courts of appeals is a thoroughly sound one.

2 Whether or not sexual orientation classifications might someday be recognized as 3 quasi-suspect, they are not today, and cannot be in this Court unless and until the 4 en banc Ninth Circuit or the Supreme Court chooses to revisit the issue.12 5 Accordingly, rational basis scrutiny applies to DOMA Section 3. 6 7 2. DOMA Section 3 Does Not Classify on the Basis of Gender. Plaintiffs also suggest, in passing, that Section 3 discriminates on the basis

8 of gender. See Compl. 54, 70; Mot. for Prel. Inj. at 4, 17. In fact, however, it 9 does not. Each gender male and female is treated equally under DOMA 10 Section 3. No Article III court has held otherwise, and this Court has squarely 11 rejected the argument. See Lui Order at 3 (Plaintiffs have failed to assert any 12 facts to suggest the Defendants discriminated against them on the basis of their 13 sex, as opposed to their sexual orientation.); Torres-Barragan Order at 3 14 (Defendants denied the I-130 Petition not for Plaintiffs sex, but because of their 15 sexual orientation.); see also Jackson v. Abercrombie, No. 1:11-cv-00734, -- F. 16 Supp. 2d -- , 2012 WL 3255201, at *27 (D. Haw. Aug. 8, 2012) (an opposite-sex 17 definition of marriage does not constitute gender discrimination), appeal 18 docketed, No. 12-16998 (9th Cir. Sept. 10, 2012); In re Kandu, 315 B.R. at 143 19 (same); In re Marriage Cases, 183 P.3d 384, 401, 76 Cal. Rptr. 3d 683 (Cal. 2008) 20 ([W]e do not agree with the claim . . . that the applicable statutes properly should 21 be viewed as an instance of discrimination on the basis of the suspect characteristic 22 of sex or gender.); Conaway v. Deane, 932 A.2d 571, 598, 401 Md. 219 (Md. 23 24
Plaintiffs argue that this Court should ignore the binding precedent of High Tech Gays, as reaffirmed by Witt, because, in their opinion, the law one day may change. See, e.g., Mot. for 25 Prel. Inj. at 18 n.20 (Though Judge Canbys view has yet to attain the status of binding 26 precedent in the Ninth Circuit, . . . it soon will.). If ever there was a recipe for fomenting disrespect for the rule of law and those who interpret it, Plaintiffs have provided it.
12

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1 2007) (Marylands marriage statute does not discriminate on the basis of sex); 2 Andersen v. King Cnty., 138 P.3d 963, 969, 158 Wash. 2d 1 (Wash. 2006) 3 (Washingtons DOMA treats both sexes the same). 4 C. DOMA Section 3 Satisfies Rational Basis Review. 5 Rational basis review is the most relaxed and tolerant form of judicial 6 scrutiny under the Equal Protection Clause. City of Dallas v. Stanglin, 490 U.S. 19, 7 26, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989). Under such review, a statute receives 8 a strong presumption of validity and must be upheld if there is any reasonably 9 conceivable state of facts that could provide a rational basis for the classification. 10 FCC v. Beach Commcns, Inc., 508 U.S. 307, 313-14, 113 S. Ct. 2096, 124 L. Ed. 11 2d 211 (1993). 12 [T]hose challenging the legislative judgment must convince the court that 13 the legislative facts on which the classification is apparently based could not 14 reasonably be conceived to be true by the governmental decision maker. Vance v. 15 Bradley, 440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 2d 171(1979). The government 16 has no obligation to produce evidence to sustain the rationality of a statutory 17 classification, and courts are compelled under rational-basis review to accept a 18 legislatures generalizations even when there is an imperfect fit between means and 19 ends. Heller v. Doe, 509 U.S. 312, 320, 321, 113 S. Ct. 2637, 125 L. Ed. 2d 257 20 (1993). [A] legislative choice is not subject to courtroom fact-finding and may be 21 based on rational speculation unsupported by evidence or empirical data. Beach 22 Commcns, 508 U.S. at 315. Indeed, it is entirely irrelevant for constitutional 23 purposes whether the conceived reason for the challenged distinction actually 24 motivated the legislature. Id. [T]he burden is on the one attacking the 25 legislative arrangement to negative every conceivable basis which might support it, 26 whether or not that basis has a foundation in the record. Heller, 509 U.S. at 32027 21 (quotation marks, brackets, and citations omitted) (emphasis added). 28 29

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1 Furthermore, the courts may not substitute [their] personal notions of good public 2 policy for those of Congress. Schweiker v. Wilson, 450 U.S. 221, 234, 101 S. Ct. 3 1074, 67 L. Ed. 2d 186 (1981). 4 So strong is the presumption of validity under rational basis review that only 5 once (to our knowledge) has the Supreme Court applied it to strike down a federal 6 statute as an equal protection violation. See U.S. Dept of Agric. v. Moreno, 413 7 U.S. 528, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973).13 That striking fact is a direct 8 product of the deferential nature of rational basis review and how extraordinarily 9 difficult it is for a federal court to conclude the coordinate branches which enacted 10 and signed a law were not just unwise, but wholly irrational. 11 This deferential standard is at its zenith when it comes to statutory 12 definitions and other line-drawing exercises (like DOMA Section 3). The Supreme 13 Court has recognized a broad category of regulations in which Congress had to 14 draw the line somewhere, Beach Commcns, 508 U.S. at 316, and which 15 inevitably require[] that some persons who have an almost equally strong claim to 16 favored treatment be placed on different sides of the line. Mathews v. Diaz, 426 17 U.S. 67, 83, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976); see Schweiker, 450 U.S. at 18 238 (prescribing extra deference for statutory distinctions that inevitably involve[] 19 the kind of line-drawing that will leave some comparably needy person outside the 20 favored circle) (footnote omitted). In such cases, Congresss decision where to 21 draw the line is virtually unreviewable. Beach Commcns, 508 U.S. at 316. 22 23
Cf. Jimenez v. Weinberger, 417 U.S. 628, 94 S. Ct. 2496, 41 L. Ed. 2d 363 (1974) (finding unconstitutional under any standard a classification based on illegitimacy, which the 24 Court was then in the process of recognizing as quasi-suspect). The lone exception of Moreno is readily distinguishable. The classification there could not further the interests identified by the 25 government because the vast majority of individuals who it excluded could easily rearrange their 26 affairs to become eligible, while the neediest people would not be able to do so. See Moreno, 413 U.S. at 538. There are no analogous difficulties with DOMA Section 3.
13

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The Supreme Court has long recognized that governmental definitions of

2 who or what constitutes a family are precisely this kind of exercise in line-drawing. 3 In Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 797 4 (1974), the Court upheld on rational basis review a zoning regulation defining 5 unmarried couples as families permitted to live together, but prohibiting 6 cohabitation by larger groups. The Court rejected the argument that if two 7 unmarried people can constitute a family, there is no reason why three or four 8 may not, noting that every line drawn by a legislature leaves some out that might 9 well have been included. Id. In such cases, said the Court, the decision of the 10 legislature must be accepted unless we can say that it is very wide of any 11 reasonable mark. Id. n.5 (quotation omitted). Thus, DOMA Section 3 can be 12 struck down as irrational only if the line it draws between a relationship between 13 one man and one woman and every other relationship a line that virtually every 14 society everywhere has drawn for all of recorded history is very wide of any 15 reasonable mark. Id. To the contrary, DOMA Section 3 and its traditional 16 definition of marriage are supported by multiple rational bases. 17 In an equal protection challenge, a classification is rational if the inclusion 18 of one group promotes a legitimate governmental purpose, and the addition of 19 other groups would not. Johnson v. Robison, 415 U.S. 361, 383, 94 S. Ct. 1160, 20 39 L. Ed. 2d 389 (1974); see Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 84 21 L. Ed. 1124 (1940) (The Constitution does not require things which are different 22 in fact or opinion to be treated in law as though they were the same.). The 23 question, therefore, is not whether the denial of benefits to relationships other than 24 opposite-sex couples serves any particular government interest when considered in 25 a vacuum nor, as Plaintiffs seem to assume, whether it by itself will encourage 26 opposite-sex couples to marry or have children. See Mot. for Prel. Inj. at 10 & 27 n.10. Rather, it is whether there is a rational reason for extending such benefits to 28 31

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1 opposite-sex couples that does not apply in the same way, or to the same degree, 2 with respect to same-sex couples. If Congress could not rationally offer a benefit 3 to one class of people but not to others unless the denial itself confers some 4 additional benefit on the first class, then a vast host of government benefits would 5 have to be either extended to virtually everyone, or else eliminated.14 6 1. Uniquely Federal Interests. 7 In defining marriage for purposes of federal law, Congress could and did 8 consider the interests that motivate the states traditional definitions of marriage. 9 See infra pp. 40-47. But Congress also was motivated by several interests peculiar 10 to the federal government: Creating uniformity in federal marital status eligibility 11 across state lines, protecting the public fisc and preserving the judgments of previous 12 Congresses, preserving the authority of the United States, as a separate sovereign, to 13 enact its own definition of marriage for purposes of its own laws, and exercising 14 caution in considering the unknown but surely significant effects of an un15 precedented change in our most fundamental social institution. See Massachusetts, 16 682 F.3d at 12 (Congress surely has an interest in who counts as married. The 17 statutes and programs that [DOMA] governs are federal regimes . . . .). 18 19 20 a. Maintaining a Uniform Federal Definition of Marriage.

DOMA Section 3 manifestly serves the federal interest in uniform eligibility

21 for federal benefits that is, in ensuring that similarly-situated couples will be 22 eligible for the same federal marital status regardless of which state they happen to 23
14

24 51, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983), the Supreme Court held it was not irrational for
Congress to decide that, even though it will not subsidize substantial lobbying by charities

For instance, in Regan v. Taxation With Representation of Wash., 461 U.S. 540, 550-

25 generally, it will subsidize lobbying by veterans organizations, despite the obvious fact that 26 offering a tax benefit to other charities would have little if any effect on the benefit to veterans
groups. The same could be said of most other government benefits.

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1 live in. See, e.g., 142 Cong. Rec. 10468 (1996) (Sen. Nickles) (DOMA will 2 eliminate legal uncertainty concerning Federal benefits); id. 22459 (1996) (Sen. 3 Ashcroft) (finding it very important to prevent people in different States [from 4 having] different eligibility to receive Federal benefits); see also 150 Cong. Rec. 5 15318 (2004) (Sen. Inhofe) (the issue should be handled on a Federal level 6 [because] people constantly travel and relocate across State lines throughout the 7 Nation). Congress has legitimate interests in efficiency, fairness, predictability, 8 and uniformity in federal programs. In re Cardelucci, 285 F.3d 1231, 1236 (9th 9 Cir. 2002). 10 DOMA Section 3 assures uniform treatment of same-sex couples, regardless 11 of where they happen to reside. Plaintiffs, on the other hand, demand the arbitrary 12 provision of spousal benefits only to those same-sex couples who happen to reside 13 in a state that recognizes same-sex marriage. It is certainly rational for the federal 14 government to prefer a regime that treats same-sex couples uniformly. 15 The Hawaii Supreme Courts Baehr decision presented Congress with three 16 choices with respect to the substantive eligibility criteria for federal marital 17 benefits. Congress could have (a) adopted the approach of the majority of the 18 states and limited marriage to opposite-sex couples for purposes of federal law; (b) 19 incorporated a patchwork of state rules into federal law, meaning that federal 20 benefits for same-sex couples would depend on the varying laws of the individual 21 states; or (c) recognized same-sex marriage nationwide for federal purposes. Any 22 of these choices would have been rational including (a), the one Congress chose. 23 Plainly, Congress rationally could conclude that a uniform nationwide 24 definition was desirable, and thus reject option (b). It was more than rational for 25 Congress to avoid treating same-sex couples differently for purposes of federal law 26 on the basis of their states of residence. Moreover, given the varying approaches 27 to same-sex marriage taken by the states, it was rational for Congress to avoid the 28 33

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1 confusion that would reign when same-sex couples marry in a state or country that 2 permits it, but then reside in a state that does not recognize such marriages.15 The 3 federal government would have been forced either to recognize such marriages (in 4 conflict with the laws of the couples state of residence), or disregard a previously 5 federally-recognized marriage if the couple moved from the state where the 6 marriage took place to a non-recognition state. 7 Congress also rationally could, and did, decline option (c), which would 8 have required Congress to flout the approach of every state in the country at the 9 time DOMA was enacted in 1996, and the approach of the vast majority of states 10 today. 11 Rather than treat same-sex couples differently based on the happenstance of 12 where they reside or reject the approach of the vast majority of states, Congress 13 chose to preserve uniformity by adopting the rule of the vast majority of states as 14 its own. That surely was a rational choice. See Nuez-Reyes v. Holder, 646 F.3d 15 684, 690 (9th Cir. 2011) (en banc) (where some states confer a certain status and 16 others do not, it is rational for Congress in the strong interest of uniformity not to 17 recognize the state-law status for federal purposes rather than adopt a piecemeal 18 approach) (quoting Nunez-Reyes v. Holder, 602 F.3d 1102, 1107 (9th Cir. 2010) 19 (Graber, J., concurring)); Dailey v. Veneman, No. 01-3146, 2002 WL 31780191, at 20 *3 (6th Cir. Dec. 3, 2002) (describing Congresss interest in uniformity as a 21 22 23 24 25 26 27 28 34
See, e.g., 152 Cong. Rec. 10067 (2006) (Sen. Carper) (if a Delaware same-sex couple go[es] to another country or another place where same-sex marriages are allowed . . . they are not married in my State). Compare N.M. Atty Gen. Op. No. 11-01, 2011 WL 111243 (Jan. 4, 2011) (predicting that New Mexico would recognize out-of-state same-sex marriages despite not issuing its own licenses to same-sex couples), with, e.g., Re: 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, N.J. Atty Gen. Op. No. 3-2007, 2007 WL 749807 (Feb. 16, 2007) (foreign same-sex marriages recognized as civil unions), and with, e.g., Fla. Const. art. I, 27 (declining recognition).
15

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1 rational basis and noting as to the program at issue that Congress may have 2 wanted to avoid confusion by establishing a uniform standard). 3 Put another way, once it became clear that some states might begin 4 recognizing same-sex marriage, Congress had to choose between uniformity in 5 either (i) the substantive eligibility criteria for federal marital benefits, or (ii) the 6 procedural practice of simply deferring to state-law marital determinations. 7 Congress reasonably chose the former, and reasonably chose to adopt the 8 definition of marriage that prevails among the vast majority of the states. In the 9 context of nationwide benefits and burdens, it surely is rational to treat two same10 sex couples in different states the same, rather than offering one couple distinct 11 benefits based on differences in state marriage law.16 12 13 14 b. Preserving the Public Fisc and Previous Legislative Judgments.

By maintaining the traditional definition of marriage in DOMA Section 3,

15 Congress preserved both the public fisc and the legislative judgments of countless 16 earlier Congresses, which used terms like marriage and spouse on the 17 18 19 20 21 22 23 24 25 26 27 28 35
Moreover, avoiding difficult choice-of-law questions that could arise if federal benefits turned on state law recognition of out-of-jurisdiction marriages is a sufficient basis alone to support DOMA Section 3. For example, in the context of veterans benefits and in the absence of statutory direction otherwise (e.g., DOMA Section 3), the validity of a marriage is determined under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. 103(c). Given that the States currently take widely divergent views on the validity of a same-sex marriage, see, e.g., supra p. 34 n.15, the federal government, in the absence of DOMA Section 3 or an analogous statute, would face a daunting administrative burden in assigning such veterans benefits. Furthermore, absent a uniform federal definition of marriage as to same-sex couples, there would be an arbitrary provision of dependent-spouse benefits only to those same-sex couples who happened to reside in a state that recognized same-sex marriage at the time that the couple married and/or when the benefits accrued. This is just one example of why it is certainly rational for the government to prefer a regime that treats same-sex couples uniformly (and one example that exposes Plaintiffs error in asserting: Differing state laws on whether same-sex couples may marry cannot possibly burden the federal government, Mot. for Prel. Inj. at 21).
16

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1 understanding that the programs they created conferred benefits or imposed duties 2 solely for those in traditional marriages. See House Rep. at 18; supra pp. 9-13. 3 Although DOMA Section 3 applies to federal marital burdens as well as 4 benefits, on balance, Congress reasonably could have concluded that a more 5 restricted definition of marriage would preserve the federal fisc. See 6 Massachusetts, 682 F.3d at 14 (Congresss decision based on preserving scarce 7 government resources may well be true, or at least might have been thought 8 true). In statutes apportioning benefits, saving money by declining to expand pre9 existing eligibility requirements or avoiding massive fiscal uncertainty are 10 themselves rational bases. See, e.g., Bowen v. Owens, 476 U.S. 340, 347-48, 106 11 S. Ct. 1881, 90 L. Ed. 2d 316 (1986); Dandridge v. Williams, 397 U.S. 471, 487, 12 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) (The Constitution does not empower this 13 Court to second-guess state officials charged with the difficult responsibility of 14 allocating limited public welfare funds among the myriad of potential recipients.); 15 Assn of Residential Res. in Minn., Inc. v. Gomez, 51 F.3d 137, 141 (8th Cir. 1995) 16 (Preserving the fiscal integrity of welfare programs is a legitimate state interest.); 17 Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) ([P]rotecting the fisc 18 provides a rational basis for Congresss line drawing in this instance.). 19 To be sure, when government withdraws benefits that it previously offered 20 to a class of people, or affirmatively penalizes a class of people or imposes extra 21 financial obligations on them, saving money (or in the latter case, obtaining 22 money) alone may not justify the deprivation. See Plyler v. Doe, 457 U.S. 202, 23 205, 227, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); Rinaldi v. Yeager, 384 U.S. 24 305, 309-10, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). But DOMA Section 3 does 25 neither. When Congress declines to extend benefits to those not previously 26 eligible, as here, the Supreme Court has recognized that this is justified by the 27 government interest in proceeding cautiously and protecting the fisc. Bowen, 28 36

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1 476 U.S. at 348 (A constitutional rule that would invalidate Congress[s] attempts 2 to proceed cautiously in awarding increased benefits might deter Congress from 3 making any increases at all. The Due Process Clause does not impose any such 4 constitutional straitjacket.) (quotation marks and citation omitted). 5 Congress expressly relied on this cost-saving rationale in enacting DOMA. 6 House Rep. at 18; see supra p. 13. Indeed, Congresss realization that recognizing 7 same-sex marriage for federal purposes would have a large and unpredictable effect 8 on the budgets of various federal agencies benefitting some agency budgets and 9 substantially burdening others would be a rational reason to avoid such budgetary 10 turmoil even were there some question whether the overall net effect would be 11 positive or negative. It was perfectly rational for Congress to avoid that uncertainty 12 by maintaining the traditional definition. 13 Additionally, in enacting DOMA Congress recognized that a host of pre14 existing federal statutes allocated marital burdens and benefits based on the 15 traditional definition of marriage because there had never been any other 16 definition. The Congresses that enacted these programs therefore reached 17 legislative judgments exclusively with opposite-sex couples in mind. It was 18 reasonable for the Congress that enacted DOMA to preserve those legislative 19 judgments and to allow those programs to operate in the manner initially intended. 20 In the context of federal regulation and spending, that surely is rational. 21 c. Caution in Facing the Unknown Consequences of a 22 Novel Redefinition of a Foundational Social Institution. 23 24 25 26 27 28 Marriage is the Nations most important social institution and one of the foundations of our society. See 150 Cong. Rec. 15347 (2004) (Sen. Clinton) (marriage is the fundamental bedrock principle that exists between a man and a woman, going back into the mi[]st of history as one of the foundational institutions 37

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1 of history and humanity and civilization). Accordingly, in enacting DOMA 2 Section 3, Congress had a supremely rational basis to proceed with caution in 3 considering whether to drop a criterion opposite-sex couples that until now has 4 been an essential element of such an enormously important social concept as 5 marriage. See supra pp. 9-14. 6 No human society has experienced the long- or even medium-term effects of 7 widespread acceptance of same-sex relationships as marriages. There thus is 8 ample room for a wide range of predictions about the likely effect of such 9 recognition. As two supporters of same-sex marriage put it, whether same-sex 10 marriage would prove socially beneficial, socially harmful, or trivial is an 11 empirical question . . . . There are plausible arguments on all sides of the issue, 12 and as yet there is no evidence sufficient to settle them. William Meezan & 13 Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and Americas Children, 15 14 Future of Children 97, 110 (Fall 2005), 15 http://futureofchildren.org/futureofchildren/publications/docs/15_02_06.pdf 16 (endorsing a limited, localized experiment at the state level). 17 In enacting DOMA, Congress reasonably could have compared the ancient 18 and well-established benefits of traditional marriage with the near complete lack of 19 information about the consequences of recognizing same-sex marriages and 20 concluded that no basis had been identified to support such a major and 21 unprecedented redefinition of such an important institution.17 Particularly in light 22
17

23 just too important to leave to chance. . . . The burden of proof is on those who seek to 24 experiment with traditional marriage, an institution that has sustained society for countless

See, e.g., 150 Cong. Rec. 4684 (2004) (Sen. Cornyn) (The institution of marriage is

generations.); id. at 14942 (Sen. Hatch) (The jury is out on what the effects on children and society will be . . . . [G]iven the uncertainty of a radical change in a fundamental institution like 25 marriage, popular representatives should be given deference on this issue.); id. at 14949 (Sen. 26 Frist) (calling same-sex marriage a vast untested social experiment for which children will bear the ultimate consequences); id. at 14951 (Sen. Sessions) (I think anybody ought to be reluctant 27 (Continued . . . .)

28

38

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1 of the traditional role of states serving as laborator[ies] . . . [of] novel social and 2 economic experiments without risk to the rest of the country, New State Ice Co. v. 3 Liebmann, 285 U.S. 262, 309, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., 4 dissenting), Congress rationally could decide to let states experiment, while the 5 federal government continued to apply the traditional definition for federal law 6 purposes. Congresss decision to neither attempt to override state law definitions 7 for state purposes nor adopt novel state re-definitions for purposes of federal law 8 surely is a rational response to a change in the definition of a foundational social 9 institution. 10 To be sure, [s]tanding alone, historical patterns cannot justify contemporary 11 violations of constitutional guarantees, but there is far more here than simply 12 historical patterns. Marsh v. Chambers, 463 U.S. 783, 790, 103 S. Ct. 3330, 77 L. 13 Ed. 2d 1019 (1983). In considering the definition of marriage, Congress 14 recognized that marriage between a man and a woman is deeply embedded in the 15 history and tradition of this country and has become part of the fabric of our 16 society in a way that has produced countless immeasurable benefits. Id. at 786, 17 792. DOMA thus was born not of a reflexive adherence to tradition but of an 18 appreciation for these vast benefits and a reluctance to change the institution of 19 marriage in a way that would have unpredictable consequences for them. See 20 Lawrence, 539 U.S. at 585 (OConnor, J., concurring) (preserving the traditional 21 22 23 to up and change [the traditional definition of marriage]; to come along and say, well, you know, 24 different.); id. at 15444 (Sen. Smith) (expressing reluctance to tinker[] with the foundations of 25 Talent) ([T]he evidence is not even close to showing that we can feel comfortable making a 26 fundamental change in how we define marriage so as to include same-sex marriage within the
definition.). our culture, our civilization, our Nation, and our future); 152 Cong. Rec. 10058 (2006) (Sen. everybody has been doing this for 2000 years, but we think we ought to try something

27 28 39

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1 institution of marriage is a rational basis for laws distinguishing between 2 heterosexuals and homosexuals). 3 4 5 2. Common Federal-State Interests: Congress Rationally Sought to Encourage Responsible Procreation.

In addition to the above-noted uniquely federal rationales, DOMA Section 3

6 also is supported by the rationales that justified the states adoption of the 7 traditional definition of marriage in the first place. Congress would not have 8 needed to engage in any fact-finding of its own to come to this conclusion: At 9 DOMA Section 3s enactment, no state recognized same-sex marriage. And even 10 now the great majority of states recognize only opposite-sex relationships as 11 marriages. For that reason alone, it surely would be legitimate for Congress to 12 adopt the states judgment as its own in this regard. Nevertheless, this section 13 articulates some of the rationales that reasonably could justify the decisions of both 14 the great majority of states and Congress to recognize only traditional marriages. 15 The traditional definition recognizes the close relationship between 16 opposite-sex marriages and child-rearing. Until recent scientific advances, 17 children could be conceived only though the union of one woman and one man, 18 and this remains the nearly exclusive means by which new lives are brought into 19 existence. Likewise, [u]ntil a few decades ago, it was an accepted truth for almost 20 everyone who ever lived, in any society in which marriage existed, that there could 21 be marriages only between participants of different sex. Hernandez v. Robles, 22 855 N.E.2d 1, 8, 7 N.Y.3d 388, 821 N.Y.S.2d 770 (N.Y. 2006). Although 23 marriage fills other functions as well, its defining purpose is the creation of a social 24 structure to deal with the inherently procreative nature of the male-female 25 relationship the word matrimony itself implicates parenthood. Marriage 26 attempts to promote permanence and stability, which are vitally important to the 27 welfare of the children of marriages. 28 40

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Congress specifically recognized this purpose in enacting DOMA, noting

2 that, [s]imply put, government has an interest in marriage because it has an 3 interest in children. House Rep. at 13. This accords with the long tradition of our 4 law, recognizing the tie between marriage and children.18 Opposite-sex 5 relationships have inherent procreative aspects that can produce unplanned 6 offspring. For this reason, heterosexual relationships implicate the state interest in 7 responsible procreation in a different way, and to a different degree, than do 8 homosexual relationships, and therefore rationally may be treated differently by the 9 government. Numerous courts have upheld states traditional marriage laws on 10 this basis.19 Foreign governments have expressed the same view.20 11 12
18

13 Puffendorf that [t]he duty of parents to provide for the maintenance of their children[] is a 14 marriage in all civilized states is built on this natural obligation (emphasis omitted)); id. *455 15 Marriage and the Law: A Statement of Principles 6, 18 (2006) (large group of family and legal 16 scholars who do not all agree substantively on . . . whether the legal definition of marriage 17 fundamentally oriented towards creating and protecting the next generation.). California law 18 App. 1935) ([P]rocreation of children is the most important end of matrimony . . . .). 19 21 22 23 24 25 26 27 28
19

E.g., 1 William Blackstone, Commentaries on the Laws of England *447 (citing

principle of natural law; citing Montesqueiu for the proposition that the establishment of

(the main end of marriage is the protection of infants); Institute for American Values,

should be altered to include same-gender couples, stating that [m]arriage and family law is reflects the same principle. Aufort v. Aufort, 49 P.2d 620, 9 Cal. App. 2d 310 (Cal. Dist. Ct.

See Citizens for Equal Prot., 455 F.3d at 867-68 (challenge to Nebraska state constitutional amendment); Conaway, 932 A.2d at 630-31 (challenge to Maryland state statute); 20 Andersen, 138 P.3d at 982-83 (challenge to Washington state statute). See 1 French National Assembly, No. 2832: Report Submitted on Behalf of the Mission of Inquiry on the Family and the Rights of Children 68 (Jan. 25, 2006), English translation at http://www.preservemarriage.ca/docs/France_Report_on_the_Family_Edited.pdf ([I]t is not possible to consider marriage and filiation separately, since . . . marriage [is] built around children.); id. at 77 (The institution of Republican marriage is inconceivable absent the idea of filiation and the sex difference is central to filiation. It corresponds to a biological reality the infertility of same-sex couples . . . . Above all else, then, it is the interests of the child that lead a majority of the Mission to refuse to change the parameters of marriage.); Schalk & Kopf v. Austria 44, 63, No. 30141/04 Eur. Ct. H. R. 2010, available at http://archive.equaljus.eu/109/1/Schalk_and_Kopf.pdf (same-sex couple argued that the procreation and education of children was no longer a decisive element of marriage; Austria and the United Kingdom (Continued . . . .)
20

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1 2 3

a.

DOMA Section 3 Rationally Focuses on Opposite-Sex Couples in Subsidizing the Begetting and Raising of Children.

Opposite-sex relationships are unique in their inherent biological tendency to

4 produce children: Opposite-sex couples can, and frequently do, conceive children 5 regardless of their intentions or plans. The State thus has an interest in channeling 6 potentially procreative heterosexual activity into the stable, permanent structure of 7 marriage, for the sake of the children, especially unplanned children, that may 8 result. Moreover, when a heterosexual relationship between unmarried individuals 9 produces unplanned offspring, the government has an interest in encouraging 10 marriage to provide a stable environment for the raising of children. Same-sex 11 couples simply do not present this concern. 12 Unsurprisingly, only a tiny fraction of all children are raised in households 13 headed by same-sex couples,21 meaning that the overwhelming majority either are 14 raised by opposite-sex couples or were conceived in an opposite-sex relationship. 15 Thus, Congress rationally could desire to support children by focusing on opposite16 sex couples. Similarly, opposite-sex couples continue to raise children in 17 18 19 8.3, No. 902/1999 H.R. Comm. 2002, in 2 Report of the Human Rights Comm., U.N. Doc. 20 A/57/40, 214 (2002), available at http://daccess22 right to same-sex marriage). 23
21

opposed and the Court found no right to same-sex marriage); Joslin v. New Zealand 3.2, 8.2, ods.un.org/access.nsf/Get?Open&DS=A/57/40(VOL.II)(SUPP)%20&Lang=E (New Zealand procreation and that marriage is an optimum construct for parenting; the Committee found no

21 argued, inter alia, that marriage centres on procreation, and homosexuals are incapable of

UCLAs Williams Institute estimates that [a]s of 2005 . . . 270,313 of the U.S.s children are living in households headed by same-sex couples, Adam P. Romero et al., Census 24 Snapshot 2 (Dec. 2007), http://escholarship.org/uc/item/6nx232r4, or 0.37% of the 73,494,000 children in the United States that year. See Living Arrangements of Children Under 18 Years 25 Old: 1960 to Present, U.S. Census Bureau, 26 http://www.census.gov/hhes/families/data/children.html (download Table CH-1) (number of children).

27 28 42

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1 significantly greater proportions than same-sex couples.22 And, in all events, 2 same-sex couples do not raise the same issues with unplanned pregnancies. 3 Thus, the government rationally can limit an institution designed to facilitate 4 child-rearing to relationships in which the vast majority of children are raised, which 5 involve child-rearing considerably more often than other relationships, and which 6 implicate unique concerns about unplanned pregnancies. Notably, the rationality of 7 this interest can be determined without inquiring whether the traditional mother8 father childrearing arrangement is in any sense better than any other. Therefore, 9 while the federal government may and does recognize other relationships in more 10 limited fashions, Congress rationally chose to apply a special set of benefits and 11 duties to traditional marriages.23 12 13 Daphne Lofquist et al., Housholds and Families: 2010, Census Br. C2010BR-14, tbl. 3 (Apr. 14 2012) (examine Same-sex partner preferred estimates data), available at 15 16 17 18 19 20 21 22 23 24 25 26 27 28
22

2010 Census data indicate that only one in six same-sex couples are raising children.

http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf. This compares with the approximately 40% of opposite-sex couples (both married and unmarried) raising children. Id. (Husband-wife households and Opposite-sex partner data). Another Williams Institute scholar estimates that the proportion of same-sex couples raising children is falling over time, as [d]eclines in social stigma toward [gay, lesbian and bisexual] people mean that more are coming out earlier in life and are becoming less likely to have children with different-sex partners before starting a household with a same-sex partner. Gary J. Gates, Family formation and raising children among same-sex couples, Family Focus on . . . LGBT Families (Natl Council on Fam. Rel.), Winter 2011, at F2, available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Gates-Badgett-NCFR-LGBT-Families-December-2011.pdf.
23

Plaintiffs respond by stating that this Circuit has concluded that DOMA Section 3 has no coherent relationship to promoting heterosexual marriage. Mot. for Prel. Inj. at 10. Plaintiffs cite for that proposition an administrative ruling by a single Judge: In re Levenson, 587 F.3d 925, 932 (9th Cir. E.D.R. 2009). Confusing an administrative ruling which has no precedential value, see Forrester v. White, 484 U.S. 219, 228, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) (judges [a]dministrative decisions, even though they may be essential to the very functioning of the courts, have not similarly been regarded as judicial acts) with circuit precedent is a substantial error, and here it is an error that Plaintiffs repeat throughout their brief by continuing to rely on Levenson without clarification, see, e.g., Mot. for Prel. Inj. at 11 n.11, 12 n.12, 21). That substantial error, however, is particularly surprising where Plaintiffs lawyers, in a separate case, made the same error with respect to an earlier decision in the same matter, only to have the House correct it. Compare [Pls.] Oppn to [House]s Mot. to Dismiss at 11-12, (Continued . . . .)

43

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Plaintiffs observation that married couples are not required to have children,

2 see Mot. for Prel. Inj. at 19-20, does not change any of this. Since only a man and 3 a woman can beget a child together, logically, making those same parties the only 4 ones eligible for marriage is a rational way of linking the two. Cf. Tuan Anh 5 Nguyen v. INS, 533 U.S. 53, 70, 121 S. Ct. 2053, 150 L. Ed. 2d 115 (2001) (even 6 under heightened scrutiny, where a statute classifies based on a genuine biological 7 difference, the courts have not required that the statute . . . be capable of 8 achieving its ultimate objective in every instance). This is particularly true where 9 most opposite-sex couples ability and willingness to raise children cannot be 10 determined in advance without intolerable and possibly unconstitutional intrusions 11 on their privacy and even then could not be determined with much reliability in 12 many cases. And surely the governments acceptance of unmarried parents does 13 not make it irrational for it to encourage parents to marry, and stay married. 14 15 16 17 18 19 20 21 22 23 F.3d 1145 (9th Cir. E.D.R. 2009), as Ninth Circuit authority), with [House]s Consolidated Reply 24 to Pls. and [DOJs] Oppn to [House]s Mot. to Dismiss (House Lui Reply) at 7-8, Lui v. 25 27 28 44
Holder, No. 2:11-cv-01267 (Sept. 12, 2011) (ECF No. 35) (noting plaintiffs mistake). Plaintiffs also rely on In re Balas, 449 B.R. 567, 578 (Bankr. C.D. Cal. 2011), see Mot. for Prel. Inj. at 10 n.10, 11 n.11, 12 n.12, a bankruptcy court case in which no party defended 26 DOMA Section 3, as the House previously has noted. See House Lui Reply at 7-8 & n.3. Lui v. Holder, No. 2:11-cv-01267 (Sept. 2, 2011) (ECF No. 31) (misciting In re Levenson, 560

b.

DOMA Rationally Encourages and Subsidizes the Raising of Children by Their Own Biological Mothers and Fathers.

One of the strongest presumptions known to our culture and law is that a childs biological mother and father are the childs natural and most suitable guardians and caregivers, and that this family relationship will not lightly be interfered with. E.g., Santosky v. Kramer, 455 U.S. 745, 760 n.11, 766, 102 S. Ct.

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1 1388, 71 L. Ed. 2d 599 (1982).24 Our tradition offers the same protections for an 2 adoptive parent-child relationship, once it is formed but the stringent standards 3 imposed for eligibility to adopt, which never would be required as a condition of 4 custody of ones own biological offspring, demonstrate the unique value we place 5 on the biological parent-child relationship. See Mullins v. Oregon, 57 F.3d 789, 6 794 (9th Cir. 1995) (no fundamental liberty interest in adopting a child); Stanley v. 7 Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (noting the 8 protected interest of a man in the children he has sired and raised). And there is 9 a sound logical basis for this bedrock assumption: Biological parents have a 10 genetic stake in the success of their children that no one else does. 11 It is rational for government to encourage relationships that result in mothers 12 and fathers jointly raising their biological children. By offering benefits to 13 opposite-sex couples in enacting DOMA, and imposing the marital expectations of 14 fidelity, longevity, and mutual support, that is what Congress did. Because same15 sex relationships are incapable of creating families of mother, father, and 16 biological children, the legitimate state interest in promoting a family structure that 17 facilitates the rearing of children by both biological parents is distinctively served 18 by the traditional definition. 19 Plaintiffs claim, in cursory fashion, that parenting by same-sex couples is 20 interchangeable with parenting by a childs biological mother and father. See Mot. 21 for Prel. Inj. at 20. But this proposition is, to say the least, far from so clear that it 22 would be irrational for Congress to disagree. The cases Plaintiffs cite purport to 23 rely on social-science research to establish as much. But the state of this research 24 25 27 28 45
International law recognizes the same principle. See United Nations Convention on the Rights of the Child, art.7, 28 I.L.M. 1456, 1460 (Nov. 20, 1989) (a child has a right, as far 26 as possible, . . . to know and be cared for by his or her parents).
24

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1 was well summarized by two self-described supporters of same-sex marriage in 2 2005: [T]hose who say the evidence shows that many same-sex parents do an 3 excellent job of parenting are right. Those who say the evidence falls short of 4 showing that same-sex parenting is equivalent to opposite-sex parenting (or better, 5 or worse) are also right. Meezan & Rauch, supra p. 38, at 104; see also 6 Hernandez, 855 N.E.2d at 8 (What [the studies] show, at most, is that rather 7 limited observation has detected no marked differences.). 8 Many states allow same-sex couples to adopt and raise children, and 9 Congress has not interfered. But Congress still rationally could find a unique 10 degree of federal government encouragement appropriate for arrangements where 11 children are raised by the man and woman who brought them into the world.25 12 c. DOMA Section 3 Rationally Encourages Childrearing 13 in a Setting with Both a Mother and a Father. 14 Even aside from the biological link between parents and children, biological 15 differentiation in the roles of mothers and fathers makes it fully rational to 16 encourage family situations that allow children have one of each. As the Supreme 17 Court recognizes in other contexts: The two sexes are not fungible; a community 18 made up exclusively of one sex is different from a community composed of both. 19 United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L. Ed. 2d 735 20 (1996) (quoting Ballard v. United States, 329 U.S. 187, 193, 67 S. Ct. 261, 91 L. 21 Ed. 181 (1946) (brackets omitted)). 22 23
Plaintiffs also err in suggesting that, if DOMA Section 3 does not advance a particular rational basis in a particular application, that rational basis fails. See Mot. for Prel. Inj. at 20. 24 Just the opposite pertains: Under rational basis review, there need not be any perfect fit between [the] means and [the] ends, Heller, 509 U.S. at 320-21; a statute may be both 25 underinclusive and overinclusive, Vance, 440 U.S. at 108. Cf. Tuan Anh Nguyen, 533 U.S. 53 26 (even when heightened scrutiny applies, courts have not required that the statute under consideration . . . be capable of achieving its ultimate objective in every instance).
25

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Common sense, and the experience of countless parents, informs us that

2 children relate and react differently to mothers and fathers based on the typical 3 differences between men and women in parenting style, size, and voice tone. 4 Moreover, the different challenges faced by boys and girls as they grow to 5 adulthood make it eminently rational to think that children benefit from having role 6 models of both sexes in the home. 7 Finally, Congress also rationally could have concluded that opposite-sex 8 couples are more likely to remain together in committed relationships than are 9 same-sex couples, as recent empirical evidence tends to suggest. E.g., Matthijs 10 Kalmijn, et al., Income Dynamics in Couples and the Dissolution of Marriage and 11 Cohabitation, 44 Demography 159, 170 (2007); Gunnar Andersson, et al., The 12 Demographics of Same-Sex Marriages in Norway and Sweden, 43 Demography 13 79, 93 (2006). 14 IV. 15 DOMA Section 3 Satisfies Substantive Due Process Principles. Plaintiffs claim that DOMA Section 3 also violates the substantive due

16 process component of the Fifth Amendment. See Compl. 72, 73; Mot. for Prel. 17 Inj. at 6-14. Their claim is that DOMA Section 3 is subject to a heightened 18 standard of review in this context. Id. at 6-9. But heightened substantive due 19 process review applies only where a fundamental liberty interest is both at stake 20 and infringed. Here, neither is the case: No fundamental interest is at stake and, 21 even if one were Plaintiffs define their interest as the integrity of their lawful 22 marriage and their most intimate family relationships, Compl. 72 DOMA does 23 not infringe that interest. 24 25 A. No Fundamental Liberty Interest Is at Stake in This Case.

In the substantive due process context, only those fundamental rights and

26 liberties which are, [i] objectively, deeply rooted in this Nations history and 27 28 47

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1 tradition, and [ii] implicit in the concept of ordered liberty should be recognized 2 for heightened scrutiny. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. 3 Ct. 2258, 138 L. Ed. 2d 772 (1997) (quotation marks and citations omitted). In 4 defining the right or interest at issue, the courts may not readily generalize to an 5 abstract description so as to implicate such a right or interest; rather, courts must 6 careful[ly] describe the asserted right or interest at issue. Id. at 721 (quotation 7 marks omitted). 8 By extending constitutional protection to an asserted right or 9 liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore 10 exercise the utmost care whenever we are asked to break new 11 ground in this field lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the 12 Members of this Court. 13 Id. at 720 (quotation marks and citation omitted); see also Collins v. City of Harker 14 Heights, Tex., 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) 15 ([T]he Court has always been reluctant to expand the concept of substantive due 16 process because guideposts for responsible decisionmaking in this unchartered area 17 are scarce and open-ended.). 18 In Glucksberg, for example, the Supreme Court considered a state law 19 barring an individual from assisting another in ending his or her own life. See 521 20 U.S. at 707. The Court did not define the interest at issue in the broad terms 21 suggested by those attacking the statute e.g. , as a right to determin[e] the time 22 and manner of ones death, the right to die, a liberty to choose how to die, a 23 right to control of ones final days, the right to choose a humane, dignified 24 death, or the liberty to shape death but rather as the more narrow right to 25 assistance in committing suicide. Id. at 722-23, 726 (quotation marks omitted). 26 As so defined, the Court found no fundamental right or liberty. See id. at 723-28; 27 28 48

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1 see also Reno v. Flores, 507 U.S. 292, 302-03, 113 S. Ct. 1439, 123 L. Ed. 2d 1 2 (1993) (narrowly defining right at issue as alleged right of a child who has no 3 available parent, close relative, or legal guardian, and for whom the government is 4 responsible, to be placed in the custody of a willing-and-able private custodian 5 rather than of a government-operated or government-selected child-care 6 institution rather than an asserted right to freedom from physical restraint or to 7 be released from all other custody into the custody of its parents, legal guardian, or 8 even close relatives; also noting: The mere novelty of . . . a claim is reason 9 enough to doubt that substantive due process sustains it (quotation marks 10 omitted)). 11 The Ninth Circuit likewise has required the courts to adopt a narrow 12 definition of the interest at stake in considering an asserted substantive due 13 process fundamental right or liberty interest. Raich v. Gonzalez, 500 F.3d 850, 863 14 (9th Cir. 2007); see also id. at 864 ([T]he right must be carefully stated and 15 narrowly identified before the ensuing analysis can proceed.). Raich defined the 16 interest at stake there not as the right to make life-shaping medical decisions that 17 are necessary to preserve the integrity of her body, avoid intolerable physical pain, 18 and preserve her life, but rather as the right to use marijuana to preserve bodily 19 integrity . . . an interest that it had little trouble concluding was not entitled to 20 heightened substantive due process protection. Id. at 864-66 (brackets and 21 quotation marks omitted; emphasis in original). 22 Here, the Complaint as pled indicates that Plaintiffs seek to vindicate an 23 alleged right of Ms. DeLeon to obtain reconsideration, based on her obtaining a 24 state marriage certificate after many years of unlawful presence in this country, of 25 USCISs determination that she is not eligible to adjust to lawful permanent 26 resident status (because she misrepresented to the federal government a material 27 fact about herself at the time of her initial entry into this country in 1989). See 28 49

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1 Compl. 27; First USCIS Dec. at 3. That is not a fundamental right or liberty 2 interest. Certainly there is no objective[], deeply rooted . . . history and 3 tradition in this country of allowing such a reopening on that basis (or any other). 4 Glucksberg, 521 U.S. at 720-21; see also, e.g., Mullins, 57 F.3d at 793-95 5 (considering history, traditions, and practices to determine that proposed right not 6 appropriate for substantive due process recognition). Nor is such an opportunity to 7 reopen implicit in the concept of ordered liberty, which serves as an independent 8 reason why Plaintiffs proposed fundamental right or interest must be rejected. 9 Glucksberg, 521 U.S. at 721 (quotation marks omitted).26 10 Indeed, Congress at any time could remove any opportunity of a petitioner to 11 seek re-opening of the denial of a waiver of a determination of non-eligibility for 12 adjustment of status. See, e.g., I.N.S. v. Pangilinan, 486 U.S. 875, 882-83, 108 S. 13 Ct. 2210, 100 L. Ed. 2d 882 (1988) (Congress has exclusive constitutional power 14 over immigration and nationalization matters); Fiallo v. Bell, 430 U.S. 787, 792, 15 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ([O]ver no conceivable subject is the 16 legislative power of Congress more complete than it is over the admission of 17 aliens. (quotation marks omitted)). More than that, Congress at any time could 18 remove any opportunity for a waiver at all, or even flatly preclude any opportunity 19 for an alien to obtain adjustment of status, period. See, e.g., Miller v. Albright, 523 20 U.S. 420, 456, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (Because only Congress 21 has the power to set the requirements for acquisition of citizenship by persons not 22 born within the territory of the United States, federal courts cannot exercise that 23
26

24 Ninth Circuit to define the interest at stake broadly as the denial of any right based on status as 25 fact, same-sex marriage first was allowed in this country only eight years ago. See Jackson, 26 2012 WL 3255201, at *22 (In fact, [opposite sex marriage] is the historically and traditionally
understood definition; [same-sex marriage] was first allowed by a state in 2004 . . . .). a same-sex spouse, there is no long history in the United States of recognition of such a right. In

Even were this Court contrary to the express direction of the Supreme Court and

27 28 50

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1 power under the guise of their remedial authority.); Catholic Soc. Servs., Inc. v. 2 Reno, 134 F.3d 921, 926 (9th Cir. 1997) ([Congresss] plenary authority with 3 respect to immigration matters is . . . ingrained in our law.). There simply exists 4 no fundamental right of the sort envisioned by Plaintiffs.27 5 6 7 B. DOMA Does Not Infringe the Purported Liberty Interest Plaintiffs Have Identified. Plaintiffs seek to avoid the force of this argument by defining their asserted

8 interest at an extremely high level of generality. In Plaintiffs telling, the right at 9 issue is the integrity of their lawful marriage and their most intimate family 10 relationships. Compl. 72. This, of course, is precisely what the Supreme Court 11 and Ninth Circuit have instructed courts not to do. See supra pp. 47-51. 12 However, even if this Court were to accept this articulation of Plaintiffs 13 interest (as it should not), and even if this Court were to accept this articulated 14 interest as defining a fundamental right or liberty interest, Plaintiffs asserted 15 liberty interest is not infringed by DOMA Section 3 and, accordingly, heightened 16 scrutiny is not triggered. 17 The failure of the government to conform its statutes and regulations so as to 18 facilitate the exercise of a fundamental right does not amount to the infringement 19 of that right, as the Supreme Court repeatedly has held. See, e.g., DeShaney v. 20 Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L. 21 Ed. 2d 249 (1989) ([T]he Due Process Clauses generally confer no affirmative 22 right to governmental aid, even where such aid may be necessary to secure life, 23 liberty, or property interests of which the government itself may not deprive the 24 25 provides for certain procedural rights in the immigration context, it may not deny those rights to 26 same-sex spouses while simultaneously granting them to opposite-sex spouses. That claim fails
for reasons stated above. See * pp. 21-47.
27

Plaintiffs true claim appears to be one for equal protection: That, where Congress

27 28 51

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1 individual.); Bowen v. Gilliard, 483 U.S. 587, 601-02, 107 S. Ct. 3008, 97 L. Ed. 2 2d 485 (1987) (That some families may decide to modify their living 3 arrangements in order to avoid the effect of the amendment, does not transform the 4 amendment into an act whose design and direct effect are to intrude on choices 5 concerning family living arrangements. (quotation marks omitted)). Otherwise 6 stated, while substantive due process principles bar the government from directly 7 infringing certain rights, e.g., by criminalizing the exercise of that right, see 8 Lawrence, 539 U.S. 558, the government is not obligated to facilitate the exercise 9 of those rights in its allocation of government benefits. See also, e.g., Califano v. 10 Jobst, 434 U.S. 47, 54, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) (holding no 11 infringement of substantive due process rights and stating that government 12 withdrawal of certain social security benefits upon marriage does not interfere 13 with the individuals freedom to make a decision as important as marriage).28 14 Here, DOMA Section 3 does not prohibit Ms. DeLeon and Ms. Rodriguez 15 from marrying, or from forming or maintaining any other family relationship; it 16 merely defines marriage for the purpose of distributing certain federal benefits and 17 burdens. Immigration determinations, of course, will have a practical effect on 18 how a couple is able to conduct their relationship but so do many other 19 consequences of unlawful conduct imposed by the state, such as incarceration, that 20 21 22 23 24 25 26 27 28 52
See also, e.g., Lyng v. Auto. Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) (denial of food stamps to striking households does not infringe First Amendment right of association, even though denial burdens exercise of that right); Taxation with Representation, 461 U.S. at 549 (noting that Court has held in several contexts that a legislatures decision not to subsidize the exercise of a fundamental right does not infringe the right; appropriations [at issue] are comparable to tax exemptions and deductions, which are also a matter of grace that Congress can, of course, disallow as it chooses (quotation marks, brackets, and ellipsis omitted)); Harris v. McRae, 448 U.S. 297, 316-17 & n.19, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (A refusal to fund protected activity, without more, cannot be equated with the imposition of a penalty on that activity).
28

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1 never have been thought to interfere with any nebulous right to integrity of 2 family relationships. Plaintiffs cite no authority for the proposition that states 3 can commandeer federal immigration law simply by issuing marriage licenses to 4 aliens who entered and remained in the country unlawfully. Accordingly, DOMA 5 Section 3 does not offend substantive due process principles. See, e.g., Druker v. 6 Commr, 697 F.2d 46, 50 (2d Cir. 1982) (marriage penalty in federal tax code 7 does not violate substantive due process principles; The adverse effect of the 8 marriage penalty, . . . like the effect of the termination of social security benefits 9 in Jobst, is merely indirect); Phila. Police & Fire Assn for Handicapped 10 Children, Inc. v. City of Philadelphia, 874 F.2d 156, 165-66 (3d Cir. 1989) 11 (reduction in services for mentally handicapped persons does not violate 12 substantive due process principles because it does not in itself require members of 13 the class to leave their family homes or enter institutions . . . although it may make 14 it more likely that they will do so). Even DOJ, after abandoning its duty to 15 defend DOMA Section 3 against equal protection challenges, has recognized as 16 much. See infra p. 17 n.7. 17 Accordingly, because DOMA Section 3 satisfies rational basis review, see 18 supra pp. 29-47, it does not violate substantive due process. See, e.g., U.S. R.R. 19 Ret. Bd. v. Fritz, 449 U.S. 166, 173 n.8, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980) 20 ([I]f a federal statute is valid under the equal protection component of the Fifth 21 Amendment, it is perforce valid under the Due Process Clause of that 22 Amendment.).29 23 24 25 heightened scrutiny applies. See Mot. for Prel. Inj. at 6-14 (never arguing that DOMA Section 3 26 violates substantive due process principles under rational basis review). Because heightened
scrutiny does not apply, Plaintiffs argument fails.
29

Plaintiffs substantive due process argument depends entirely on the contention that

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1 V. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Any Redefinition of Marriage Should Be Left to the Democratic Process. When it comes to same-sex marriage, 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. Fortunately, there is an alternative: Same-sex marriage is being actively debated in legislatures, in the press, and at every level of government and society across the country. That is how it should be. These fora require participants on both sides to persuade those who disagree, rather than labeling them irrational or bigoted. Importantly, gay-rights supporters have ample and increasing clout in Congress and the Executive Branch. Congresss recent repeal of Dont Ask, Dont Tell is one prominent example. See Dont Ask, Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010), 10 U.S.C. 651, 654. And bills to repeal DOMA are pending in both houses of Congress, and one has passed the Senate Judiciary Committee. See Respect for Marriage Act, H.R. 1116, 112th Cong. (2011); The Respect for Marriage Act of 2011, S. 598, 112th Cong. (2011). By contrast, the courts can intervene in the debate only to cut it short, and only by denouncing the positions of the hundreds of Members of Congress who voted for DOMA, of the President who signed it, and of a vast swathe of the American people as not just mistaken or antiquated, but as wholly irrational. That conclusion plainly is unwarranted as a matter of constitutional law, and judicially constitutionalizing the issue of same-sex marriage is unwarranted as a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves. Instead, this Court should permit[] this debate to continue, as it should in a democratic society. Glucksberg, 521 U.S. at 735. 54

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1 VI. 2 3

Plaintiffs Motion for Preliminary Injunction Should Be Denied for the Additional Reason That Plaintiffs Have Not, and Cannot, Make the Requisite Showing of Injury. As noted above, Plaintiffs purport to seek a preliminary injunction that

4 applies to themselves, and to unnamed members of the plaintiff class. 5 [Proposed] Prel. Inj. at 3-4 (Aug. 23, 2012) (ECF No. 12-1). However, no class 6 has been certified and, in the absence of class certification, [a] preliminary 7 injunction may properly cover only the named plaintiffs. Natl Ctr. for 8 Immigrants Rights, Inc. v. I.N.S., 743 F.2d 1365, 1371 (9th Cir. 1984); see also 9 Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (A federal court . . . may not 10 attempt to determine the rights of persons not before the court.); Fed. R. Civ. P. 11 65(d)(2). 12 In support of their request for a preliminary injunction for themselves, 13 Plaintiffs say they are likely to succeed on the merits, see Mot. for Prel. Inj. at 614 21, and that they will suffer irreparable injury should a preliminary injunction not 15 issue, id. at 22. Plaintiffs are wrong about the likelihood of success on the merits, 16 as we have demonstrated above. See supra pp. 19-54. Their irreparable injury 17 argument also is wrong, as we now show. 18 The injury alleged in the Complaint that purportedly provides Article III 19 standing for Plaintiffs to bring this action is the denial of Ms. DeLeons motion for 20 reconsideration on the basis of DOMA Section 3 (and the consequent denial of her 21 waiver application and application for adjustment of status). See Compl. 37. 22 In seeking preliminary injunctive relief, however, Plaintiffs stray far beyond 23 the alleged injury that actually provides the constitutional basis for their lawsuit, 24 and instead attribute to DOMA Section 3 a whole host of other ills that they now 25 ask this Court to remedy on a preliminary basis. DOMA Section 3, Plaintiffs say: 26 27 28 relegates plaintiffs DeLeon and Aranas to the status of undocumented aliens, with all the disabilities attendant thereto: 55

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joblessness or employment without authorization, possible deportation or removal, acquisition of unlawful presence time which bars future admission for ten years, inability to obtain or renew drivers licenses, and the trauma of living under constant threat of arrest and separation from family. Mot. for Prel. Inj. at 22-23. But these claims do not withstand even a cursory analysis. First, DOMA Section 3 does not relegate[] . . . [Ms.] DeLeon and [Mr.] Aranas to the status of undocumented aliens. Mot. for Prel. Inj. at 22. They are undocumented aliens because Ms. DeLeon overstayed her visitors visa nearly 23 years ago; they have been undocumented aliens during that entire period. Indeed, DOMA was not even enacted until approximately seven years after their undocumented status began and, therefore, logically cannot be the cause of that asserted injury. Rather, Ms. DeLeons and Mr. Aranass status as undocumented aliens constitutes, and has long constituted, the status quo, which alone renders Plaintiffs suggested preliminary injunction (by which Plaintiffs aim to transform that status, with all of its intendant consequences) wholly improper. See, e.g., L.A. Meml Coliseum Commn v. Natl Football League, 634 F.2d 1197, 1200 (9th Cir. 1980) ([T]he basic function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits.); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963) (It is so well settled as not to require citation of authority that the usual function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits.). Second, and relatedly, DOMA Section 3 does not cause Ms. DeLeon or Mr. Aranas either to be jobless or to be employed without authorization. See Mot. for Prel. Inj. at 22. Ms. DeLeon and Mr. Aranas are not eligible to receive an employment authorization document because they are not documented, see 8 56

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1 C.F.R. 274a.12, and that is a function of Ms. DeLeons overstay, not DOMA 2 Section 3. Moreover, enormous numbers of undocumented aliens work in this 3 country without authorization, and it appears that Ms. DeLeon, at least, may be one 4 of those. See Compl. 35(2) (Ms. DeLeon has a wide range of ties in the U.S. 5 through [her] gainful employment).30 Indeed, the Complaint nowhere asserts 6 affirmatively that Ms. DeLeon and Mr. Aranas are actually unemployed.31 7 Third, DOMA Section 3 does not cause Ms. DeLeon or Mr. Aranas to face 8 possible deportation or removal. Mot. for Prel. Inj. at 22. As an initial matter, 9 there is no indication whatsoever that, notwithstanding their nearly 23 years of 10 unauthorized presence in the United States, Ms. DeLeon and Mr. Aranas face any 11 actual threat of deportation or removal. See Oakland Trib., Inc. v. Chron. Publg 12 Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (affirming denial of preliminary 13 injunction where challenged practice had been in effect for many years, and 14 [w]here no new harm was imminent). Indeed, there are several reasons to expect 15 that Ms. DeLeon and Mr. Aranas do not now, and will not in the immediate future, 16 face any threat of deportation or removal: 17 The Executive Branch has tolerated their illegal residence in this 18 country for nearly 23 years. See Compl. 20, 25. That is unlikely to change now given that (i) the question of DOMA Section 3s 19 constitutionality is likely to be before the Supreme Court this term;32 20 21 23 25
We note that it appears that Ms. DeLeon may have received an employment authorization document in connection with the filing of her adjustment of status application in 22 2007. See First USCIS Dec. at 4. The same is true as to the generic complaint of inability to obtain or renew drivers licenses. Mot. for Prel. Inj. at 22; see, e.g., Cal. Veh. Code 12801.5 (West 2012) (proof of 24 authorized presence in United States required to obtain California drivers license). No less than eight petitions for certiorari currently are pending in four different DOMA Section 3 cases, including a First Circuit decision that found DOMA Section 3 26 unconstitutional. See, e.g., Pet. for a Writ of Cert., Bipartisan Legal Advisory Group of the U.S. House of Reps. v. Gill, No. 12-13 (June 29, 2012), 2012 WL 2586935. And the Supreme Court 27 (Continued . . . .)
32 31 30

28

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(ii) if DOMA Section 3 is struck down, Ms. Rodriguez will be able to file a family-based immigrant petition on behalf of Ms. DeLeon, as her spouse; (iii) if DOMA Section 3 is not struck down, it appears that, as a result of 8 U.S.C. 1255(i), Ms. DeLeon still would be entitled to file an adjustment of status application when her priority date becomes current on the family-based immigrant petition filed by her U.S. citizen father in 2001, see supra pp. 2-3.33 In other immigration cases involving same-sex couples, DHS has refrained from pushing for removal. See, e.g., In re Dorman, 25 I. & N. Dec. 485 (BIA 2011); Status Report . . . at 6, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Feb. 23, 2012) (ECF No. 49-1) (upon administrative closure of BIA proceedings, plaintiff no longer facing immediate adverse action). DHS has indicated that removal priorities lie elsewhere. See, e.g., Letter from Janet Napolitano, Secretary, DHS, to Senator Harry Reid 1 (Aug. 18, 2011), attached as Exhibit B hereto (Over the past two years, [DHS] has established clear and well-reasoned priorities that govern how DHS uses its immigration enforcement resources. These priorities focus our resources on enhancing border security and identifying and removing criminal aliens, those who pose a threat to public safety and national security, repeat immigration law violators and other individuals prioritized for removal.).

17 In short, there is no indication that Ms. DeLeon or Mr. Aranas face imminent 18 deportation, and so there is no indication that preliminary injunctive relief is 19 needed to forestall that danger. Finally, and in any event, to the extent Ms. 20 21 itself has identified a lower courts invalidation of an Act of Congress as a reason for granting 22 2d 658 (2000) (Because the Court of Appeals invalidated a federal statute on constitutional
certiorari. See, e.g., United States v. Morrison, 529 U.S. 598, 605, 120 S. Ct. 1740, 146 L. Ed. grounds, we granted certiorari.); see also Eugene Gressman, et al., Supreme Court Practice 264

23 (9th ed. 2007) (Where the decision below holds a federal statute unconstitutional . . . , certiorari 24 is usually granted because of the obvious importance of the case.).
33

25 to adjust to permanent resident status, notwithstanding that they otherwise would be ineligible to 26 adjust because they are not in a lawful nonimmigrant status. 8 U.S.C. 1255(c)(7). It appears
from the record before this Court that Ms. DeLeon would be eligible for this amnesty.

8 U.S.C. 1255(i) is a form of amnesty, enacted in 2000, that permits certain aliens

27 28 58

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1 DeLeon and Mr. Aranas really do face any such possible injury, Mot. for Prel. 2 Inj. at 22 a dubious proposition, to say the least that is a function of Ms. 3 DeLeons overstay, not DOMA Section 3. 4 Fourth, DOMA Section 3 does not cause Ms. DeLeon and Mr. Aranas to 5 acquire unlawful presence time which bars future admission for ten years. Mot. 6 for Prel. Inj. at 22. The law that imposes the ten year bar, which is triggered by 7 unlawful presence in the United States of more than one year, was enacted in 1996 8 and took effect on April 1, 1997. See Illegal Immigration Reform and Immigration 9 Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 309(a),110 Stat. 300910 546 (1996); see also 8 U.S.C. 1182(a)(9)(B) (providing for ten-year bar on 11 readmission of an alien who has been unlawfully present in the United States for 12 one year or more). Ms. DeLeon and Mr. Aranas have been unlawfully present in 13 this country since December 1989, which means that they long ago accrued the 14 one year or more of unlawful presence for purposes of the 10-year bar provision. 15 DOMA Section 3 manifestly is irrelevant in this regard. 16 Aside from the fact that Plaintiffs have not demonstrated, and cannot, that 17 any of the alleged harm of which they now complain is a result of DOMA Section 18 3, their preliminary injunction motion also should be denied because the eight19 month delay between the latest USCIS action in this case the Second USCIS 20 Decision and Plaintiffs filing of their Complaint in this action belies any 21 possible claim of any impending or irreparable harm in this regard. See Oakland 22 Trib., 762 F.2d at 1377 (Plaintiffs long delay before seeking a preliminary 23 injunction implies a lack of urgency and irreparable harm. (citing Lydo Enters. v. 24 City of Las Vegas, 745 F.2d 1211, 1213-14 (9th Cir. 1984))); GTE Corp. v. 25 Williams, 731 F.2d 676, 678-79 (10th Cir. 1984). 26 28 Finally, we note that Plaintiffs have not, and cannot, make any showing that, 59 27 absent DOMA Section 3, they would have obtained the waiver of inadmissibility.

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1 That is, even had Ms. DeLeon obtained reconsideration of the denial of her waiver 2 application and the determination of her inadmissibility, she still would have faced 3 the daunting task of meeting the waiver standard. See 8 U.S.C. 1182(a)(9)(B)(v); 4 In re Cervantes-Gonzalez, 22 I. & N. Dec. 560, 565-68 (BIA 1999) (en banc) 5 (noting that extreme hardship exception may be construed narrowly and that 6 establishing extreme hardship does not create any entitlement to relief: 7 Although extreme hardship is a requirement for section 212(i) relief, once 8 established, it is but one favorable discretionary factor to be considered.). Ms. 9 DeLeon has presented nothing, beyond bald assertions, that she could meet that 10 standard. In short, Plaintiffs cannot show that, were USCIS to grant Ms. DeLeons 11 reconsideration motion, it also would grant her waiver application. Short of that, 12 Plaintiffs entire irreparable injury claim is nothing more than rank speculation. 13 14 CONCLUSION For all the foregoing reasons, the Court should grant the Houses motion to

15 dismiss and should deny Plaintiffs motion for a preliminary injunction. 16 Respectfully submitted, 17 18 19 20 21 22 23 24 25 26 27 28 60
Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement.
34

By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC34 Counsel for Proposed Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives September 14, 2012

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CERTIFICATE OF SERVICE I certify that on September 14, 2012, I electronically filed the foregoing

3 Memorandum of Proposed Intervenor-Defendant the Bipartisan Legal Advisory 4 Group of the United States House of Representatives in Support of Motion to 5 Dismiss and in Opposition to Motion for Preliminary Injunction with the Clerk of 6 Court by using the CM/ECF system, which provided an electronic notice and 7 electronic link of the same to the following attorneys of record through the Courts 8 CM/ECF system: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter A. Schey, Esq. Carlos Holguin, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Boulevard Los Angeles, CA 90057 Julie Greenwald Marzouk, Esq. Monica Nikole Ashiku, Esq. PUBLIC LAW CENTER 601 Civic Center Drive West Santa Ana, CA 92701 Beatrice Ann M. Pangilinan, Esq. ASIAN LAW ALLIANCE 184 Jackson Street San Jose, CA 95112 Gary H. Manulkin, Esq. Reyna M. Tanner, Esq. LAW OFFICES OF MANULKIN & BENNETT 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708

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Jesi J. Carlson, Esq. Timothy Michael Belson, Esq. Lana L. Vahab, Esq. Katherine E.M. Goettel, Esq. UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 /s/ Kerry W. Kircher Kerry W. Kircher

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