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JAMES R. MCGUIRE (CA SBN 189275) JMcGuire@mofo.com GREGORY P. DRESSER (CA SBN 136532) GDresser@mofo.com RITA F. LIN (CA SBN 236220) RLin@mofo.com AARON D. JONES (CA SBN 248246) AJones@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org SUSAN L. SOMMER (pro hac vice) SSommer@lambdalegal.org TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010-1729 Telephone: 213.382.7600 Facsimile: 213.351.6050 Attorneys for Plaintiff KAREN GOLINSKI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
KAREN GOLINSKI, Plaintiff, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity, Defendants.
Case No.
3:10-cv-0257-JSW
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO HER MOTION FOR SUMMARY JUDGMENT Date: Time: Dept.: Judge: September 16, 2011 9:00 a.m. Courtroom 11 Hon. Jeffrey S. White
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RJN ISO PLAINTIFFS REPLY TO DEFS. OPP. TO SUMMARY JUDGMENT CASE NO. 3:10-CV-0257-JSW sf-3021276
Case3:10-cv-00257-JSW Document153
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In support of her reply to defendants opposition to her motion for summary judgment, plaintiff Karen Golinski requests that the Court take judicial notice of the attached Exhibits A to B under Federal Rule of Evidence 201. Exhibits A and B are briefs that were submitted by the plaintiff in Gill v. Office of Personnel Management, No. 1:09-cv-10309 JLT (D. Mass.). These briefs are relevant to defendants reliance on Gill, 699 F. Supp. 2d 374, 385 (D. Mass. 2010), in their opposition to plaintiffs motion for summary judgment. As explained in plaintiffs reply brief, filed herewith, Gill did not address the key argument made by plaintiff under Section 8902(f). The plaintiffs in Gill did not raise that statutory subsection in their briefs to the court. The Court may take judicial notice of those briefs because the Court may take judicial notice of documents filed in another court proceeding. United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (taking judicial notice of proceedings in other courts). Therefore, Ms. Golinski requests that the Court take judicial notice of the following, true and correct copies of which are attached: Exhibit A: Memorandum of Law in Opposition to Defendants Motion to Dismiss and in Support of Plaintiffs Motion for Summary Judgment filed on November 17, 2009 in Gill v. Office of Personnel Management, No. 1:09-cv-10309 JLT (D. Mass.). Exhibit B: Plaintiffs Reply Memorandum of Law in Support of Their Motion for Summary Judgment filed on February 16, 2010 in Gill v. Office of Personnel Management, No. 1:09-cv-10309 JLT (D. Mass.). Dated: July 22, 2011 MORRISON & FOERSTER LLP LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. By: /S/ Rita F. Lin RITA F. LIN Attorneys for Plaintiff KAREN GOLINSKI
RJN ISO PLAINTIFFS REPLY TO DEFS. OPP. TO SUMMARY JUDGMENT CASE NO. 3:10-CV-0257-JSW sf-3021276
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) ) ) ) )
NANCY GILL & MARCELLE LETOURNEAU, et al. Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al. Defendants.
No. 1:09-cv-10309 JLT
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck Mary L. Bonauto Nima R. Eshghi Janson Wu Samuel P. Bickett 30 Winter Street, Suite 800 Boston, MA 02108 Telephone (617) 426-1350 Facsimile (617) 426-3594 Attorneys for Plaintiffs
FOLEY HOAG LLP Claire Laporte Vickie L. Henry Matthew Miller Amy Senier Seaport World Trade Center West 155 Seaport Blvd. Boston, MA 02210 Telephone (617) 832-1000 Facsimile (617) 832-7000 Attorneys for Plaintiffs
JENNER & BLOCK LLP Paul M. Smith Luke C. Platzer Daniel I. Weiner Anna M. Baldwin 1099 New York Ave, NW, Suite 900 Washington, DC 20001 Telephone (202) 639-6060 Facsimile (202) 661-4948 Attorneys for Plaintiffs
SULLIVAN & WORCESTER LLP David J. Nagle Richard L. Jones One Post Office Square Boston, MA 02109 Telephone (617) 338-2873 Facsimile (617) 338-2880 Attorneys for Plaintiffs Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary BoweShulman, and Dorene Bowe-Shulman
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 3 A. B. C. I. Federal Marriage-Based Laws, Programs, Rights, and Responsibilities. ............... 3 Plaintiffs Have Been Harmed Because Defendants Refuse to Acknowledge that They are Married. ..................................................................... 5 The 1996 Defense of Marriage Act. ....................................................................... 8
ARGUMENT................................................................................................................................ 11 PLAINTIFFS EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED REVIEW. .......................................................................................................................... 12 A. The Court Should Closely Scrutinize DOMAs Intrusion into Family Law, an Area Traditionally Reserved to the States........................................................ 12 1. Determining Marital Status Is Exclusively a State Concern..................... 13 2. Marital Eligibility Has Always Varied Across States, Often Dramatically.............................................................................................. 14 3. Federal Law Has Long Relied Upon State Marital Status Determinations When Marital Status Is Relevant to Federal Law. .......... 15 4. DOMAs Radical Break from this Tradition Calls for Heightened Review. ..................................................................................................... 18 DOMA Should Be Subjected to Heightened Scrutiny Because it Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships. ........................................................................................... 19 DOMA Should Be Subjected to Heightened Scrutiny Because it Discriminates on the Basis of Sexual Orientation. ............................................... 22 1. Gays and Lesbians Have Experienced a History of Discrimination......... 24 2. Sexual Orientation Is Unrelated to the Ability to Contribute to Society....................................................................................................... 25 3. Gays and Lesbians Are a Minority and Face Significant Obstacles to Achieving Protection from Discrimination Through the Political Process. ..................................................................................................... 25 4. Sexual Orientation Is a Defining Characteristic of a Persons Identity. ..................................................................................................... 25
B.
C.
II. III.
DOMA FAILS HEIGHTENED SCRUTINY................................................................... 26 DOMA FAILS EVEN RATIONAL BASIS REVIEW. ................................................... 26 A. The Interests Asserted By the Government Are Unpersuasive. ........................... 28 1. DOMA Does Not Maintain the Status Quo, and Continuing the Exclusion of Married Same-Sex Couples from Marital Benefits Is Not an Interest. ...................................................................................... 29
2.
3.
DOMA Is Not an Incremental Response to Marriage by SameSex Couples, and Incrementalism Alone Is not an Interest in the Absence of Some Underlying Purpose. .................................................... 30 DOMAs Discrimination Among Married Persons Cannot Be Justified as Treating All Same-Sex Couples Alike, Whether Married or Not. ......................................................................................... 32
B.
The Interests Actually Stated by Congress, and Abandoned by the Government, Cannot Support DOMA Either. ...................................................... 34 1. DOMA Has Nothing to Do with Procreation and Child-Rearing............. 34 2. DOMA Cannot Be Justified as Preserving Traditional Marriage. ........ 36 3. DOMA Undermines Rather than Protects State Sovereignty. .................. 37 4. DOMA Does Not Conserv[e] Scarce Resources, and Conserving Resources Is Not a Justification for Denying Rights Indiscriminately and Inequitably. ............................................................. 38 5. Expressing Moral Disapproval of Homosexuality Is Not a Valid Interest....................................................................................................... 39
IV. V.
IN THE ALTERNATIVE, DOMA SHOULD BE INTERPRETED SO AS NOT TO REACH THE FEHB STATUTE................................................................................ 41 EACH PLAINTIFF HAS STANDING. ........................................................................... 43 A. B. Defendants Partial Challenge to Gill and Letourneaus Standing is Moot.......... 43 Plaintiff Hara Has Standing to Pursue his Claim for Federal Health Insurance Benefits................................................................................................. 44
CONCLUSION AND RELIEF REQUESTED ............................................................................ 47
ii
TABLE OF AUTHORITIES CASES Albathani v. INS, 318 F.3d 365 (1st Cir. 2003) .............................................................................46 Ankenbrandt v. Richards, 504 U.S. 689 (1992).............................................................................13 Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) .............................................20 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).......................................................................................9 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) ......27, 28, 33, 37 Bowen v. Gilliard, 483 U.S. 587 (1987) ........................................................................................24 Bradwell v. Illinois, 83 U.S. 130 (1872) ........................................................................................41 Bush v. Gore, 531 U.S. 98 (2000)..................................................................................................20 Butler v. Apfel, 144 F.3d 622 (9th Cir. 1998) ................................................................................32 Califano v. Goldfarb, 430 U.S. 199 (1977) .....................................................................................4 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .................22, 26, 27, 28, 37, 40 City of New Orleans v. Dukes, 427 U.S. 297 (1976) .....................................................................26 Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................................43 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009)........................23 DeSylva v. Ballentine, 351 U.S. 570 (1956) ............................................................................16, 17 Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338 (D.P.R. 2008)................................... 26-27, 28 Dunn v. Commissioner, 70 T.C. 361 (1978) ..................................................................................16 Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................................................28, 35 Elk Grove United School District v. Newdow, 542 U.S. 1 (2004).................................................13 FCC v. Beach Communication, Inc., 508 U.S. 307 (1993)............................................................27 FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972)................................................................46 Flemming v. Nestor, 363 U.S. 603 (1960) .......................................................................................4 iii
Frontiero v. Richardson, 411 U.S. 677 (1973) ..............................................................................24 Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1993) ...................................................................23 Goodridge v. Dept of Public Health, 798 N.E.2d 941 (Mass. 2003) .....................................35, 36 Griswold v. Connecticut, 381 U.S. 479 (1965)..............................................................................35 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)....................................................................27, 37 Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)...............................................20 Heller v. Doe, 509 U.S. 312 (1993) .........................................................................................28, 39 Helvering v. Janney, 311 U.S. 189 (1940).......................................................................................4 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) ............................................26 Hewlett-Packard Co. v Berg, 61 F.3d 101 (1st Cir. 1995) ............................................................42 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) ........................................................35 Houston Community Hospital v. Blue Cross and Blue Shield of Texas, Inc., 481 F.3d 265 (5th Cir. 2007)............................................................................................................................4 Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997)................................... 27-28 Kurzon v. United States Postal Service, 539 F.2d 788 (1st Cir. 1976) ..........................................46 Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).....................................................................47 Lawrence v. Texas, 539 U.S. 558 (2003)...............................................................20, 23, 24, 35, 41 Lee v. Commissioner, 64 T.C. 552 (1975), affd, 550 F.2d 1201 (9th Cir. 1977) .........................16 Lofton v. Secretary of Dept of Children and Family Services, 377 F.3d 1275 (11th Cir. 2004) ..................................................................................................................................28, 41 Loving v. Virginia, 388 U.S. 1 (1967)......................................................................................13, 41 Lyng v. Castillo, 477 U.S. 635 (1987) ...........................................................................................24 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ............................................................................................21 Massachusetts Trustees of Eastern Gas & Fuel Assn v. United States, 312 F.2d 214 (1st Cir. 1963) .................................................................................................................................42 Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) ...........................................24 iv
Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................................................32 Matthews v. de Castro, 429 U.S. 181 (1976).................................................................................27 Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005)....................................................................24, 32 Moore v. City of East Cleveland, 431 U.S. 494 (1977) .................................................................20 National Federation of Federal Employees v. Devine, 679 F.2d 907 (D.C. Cir. 1982) ..................4 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ...................................................................14 Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009).............18 Palmore v. Sidoti, 466 U.S. 429 (1984).........................................................................................41 Pennoyer v. Neff, 95 U.S. 714 (1877), overruled on other grounds, Shaffer v. Heitner, 433 U.S. 186 (1977).................................................................................................................13 Plyler v. Doe, 457 U.S. 202 (1982)..................................................................21, 24, 25, 27, 37, 39 Reynolds v. United States, 98 U.S. 145 (1878)..............................................................................17 Romer v. Evans, 517 U.S. 620 (1996).................................................................................... passim SEC v. Chenery Corp., 332 U.S. 194 (1947) ...........................................................................32, 46 Shapiro v. Thompson, 394 U.S. 618 (1969), overruled in part on other grounds, Edelmann v. Jordan, 415 U.S. 651 (1974) ..............................................................................39 Sosna v. Iowa, 419 U.S. 393 (1975) ........................................................................................13, 37 Spearman v. Spearman, 482 F.2d 1203 (5th Cir. 1973) ................................................................17 Stanley v. Illinois, 405 U.S. 645 (1972).........................................................................................20 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ..................................................20 Turner v. Safley, 482 U.S. 78 (1987) .............................................................................................13 United States Dept of Agriculture v. Moreno, 413 U.S. 528 (1973) ................................26, 40, 41 United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) ............................................................42 United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007) ...........................................................43, 44 United States v. Lopez, 514 U.S. 549 (1995) .................................................................................14 United States v. Morrison, 529 U.S. 598 (2000) ...........................................................................13 v
United States v. Sacco, 428 F.2d 264 (9th Cir. 1970)....................................................................17 United States v. Virginia, 518 U.S. 515 (1996) .......................................................................26, 41 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)............................................................................24 Von Tersch v. Commissioner, 47 T.C. 415 (1975).........................................................................16 Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................13 STATUTES 5 U.S.C. 3110................................................................................................................................3 5 U.S.C. 7703(d) .........................................................................................................................47 5 U.S.C. 8901(5) ...................................................................................................................42, 43 5 U.S.C. 8903(3) .........................................................................................................................43 5 U.S.C. 8905(a) .........................................................................................................................43 5 U.S.C. 8905(b) .........................................................................................................................43 5 U.S.C. 8905(b)(2) ....................................................................................................................43 5 U.S.C. 8905(e) .........................................................................................................................43 5 U.S.C. 8981-8992 ..................................................................................................................42 8 U.S.C. 1101(a)(35)...................................................................................................................17 8 U.S.C. 1186b(2)(A)....................................................................................................................3 8 U.S.C. 1430................................................................................................................................3 28 U.S.C. 458................................................................................................................................3 28 U.S.C. 1738C .....................................................................................................................1, 38 38 U.S.C. 101(31) .......................................................................................................................16 38 U.S.C. 103(c) .........................................................................................................................16 42 U.S.C. 416(h)(1)(A)(i) ...........................................................................................................16 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7......................................................................................................................... passim U.S.C.A., T.1, Ch.1........................................................................................................................18 vi
5 C.F.R. 843.102 .........................................................................................................................16 5 C.F.R. 1201.119 .......................................................................................................................47 20 C.F.R. 10.415 .........................................................................................................................16 20 C.F.R. 219.30 .........................................................................................................................16 20 C.F.R. 222.11 .........................................................................................................................16 20 C.F.R. 404.345 .......................................................................................................................16 29 C.F.R. 825.122 .......................................................................................................................16 29 C.F.R. 825.800 .......................................................................................................................16 38 C.F.R. 3.1(j) ...........................................................................................................................16 45 C.F.R. 237.50(b)(3)................................................................................................................16 HAW. CONST. art. I, 23 ..................................................................................................................9 LEGISLATIVE MATERIALS 142 CONG. REC. H7275 (daily ed. July 11, 1996) .........................................................................10 142 CONG. REC. H7276 (daily ed. July 11, 1996) .........................................................................10 142 CONG. REC. H7444 (daily ed. July 11, 1996) .........................................................................10 142 CONG. REC. H7480 (daily ed. July 12, 1996) .........................................................................10 142 CONG. REC. H7486 (daily ed. July 12, 1996) .........................................................................10 142 CONG. REC. H7494 (daily ed. July 12, 1996) .........................................................................10 142 CONG. REC. H7495 (daily ed. July 12, 1996) .........................................................................10 142 Cong. Rec. H7503-05 (daily ed. July 12 1996) ......................................................................39 142 CONG. REC. S10,110 (daily ed. Sept. 10, 1996)......................................................................10 H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ................................ passim H.R. Rep. No. 67-350 (1921)...........................................................................................................5 H.R. Rep. No. 86-957 (1959).....................................................................................................4, 43 S. Rep. No. 108-393 (2004) .............................................................................................................4
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S. Rep. No. 86-468 (1959) .......................................................................................................42, 43 S. Rep. No. 97-144 (1981) ...............................................................................................................5 ADMINISTRATIVE RULINGS In re Applications of Algreg Cellular Engineering, 12 FCC Rcd 8148 (FCC 1997) ......................3 OTHER AUTHORITIES Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625 (2007).......................................................................................................................................17 Homer Clark, Family Law (1988)..................................................................................................15 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (Jan. 21, 2004)........................................................................................................38 Fed. R. Evid. 501 .............................................................................................................................3 Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197 (1982)...................................14, 15 Fred S. Hall & Elisabeth W. Brooke, American Marriage Laws in Their Social Aspects (1919).......................................................................................................................................15 George Elliott Howard Ph.D., A History of Matrimonial Institutions (1904) ...............................14 Randall Kennedy, Interracial Intimacies (2003) ...........................................................................14 Report of the U.S. General Accountability Office, Office of General Counsel, January 23, 2004 (GAO-04-353R)................................................................................................................3 Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16) .........................................................................................................11 Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611 (2004) ...............................................................18
viii
INTRODUCTION Plaintiffs are gay men or lesbians who married a person of the same sex under the law of the Commonwealth of Massachusetts. Once legally married, the Plaintiffs would ordinarily expect to exercise all of the rights and discharge all of the responsibilities of married people. However, Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7 (DOMA), defines the terms marriage and spouse so as to exclude the lawful marriages of same-sex couples from federal recognition.1 As applied to Plaintiffs, DOMA takes the unitary class of couples married in Massachusetts and divides it in two: those who are married under federal law, and those whose marriages do not exist for any federal purpose. This sundering of the class of married people violates the Equal Protection guarantee of the Fifth Amendment. Under our constitutional scheme, it is the prerogative of the States to say who is married, as Massachusetts has done here. Because DOMA establishes a conflicting and supervening federal definition of marriage, in contravention of the States constitutional sovereignty over marriage, it merits particularly close review. Heightened scrutiny also is warranted because DOMA burdens Plaintiffs fundamental interests in the integrity of their existing familial relationships and because it impermissibly targets gay men and lesbians. Even if DOMA is examined without heightened scrutiny, it fails. There is no legitimate or plausible federal interest that is served by the creation of a freestanding federal definition of marriage that excludes same-sex couples. The reasons offered by Congress at the time, which the government sensibly does not even try to defend, are either nonsensical or just another way The Defense of Marriage Act also contains a distinct provision, Section 2, authorizing States to disregard marriages of same-sex couples performed and recognized by other States. See 28 U.S.C. 1738C. Plaintiffs do not challenge Section 2 here; the shorthand reference to DOMA in this brief is intended exclusively as a reference to Section 3 of the Act and not to Section 2.
1
of saying that Congress wanted to denounce and harm those gay men and lesbians who form long-term relationships and seek to have those relationships recognized and respected through civil marriage. For example, it is absurd to suggest that barring federal recognition of marriages of same-sex couples will somehow promote responsible procreation. And the government itself has determined that DOMA, while excluding Plaintiffs and others like them from important federal programs designed to support couples and families, has a net cost to the federal purse rather than a net savings. As for the governments effort to conjure up new and more defensible post hoc justifications for DOMA, they are more rhetoric than real justifications. Plaintiffs should not have to bear the burden of Congresss desire to score political points by refusing to recognize Plaintiffs marriages and treat them equally. For these reasons, the Defendants motion to dismiss should be denied. Indeed, as shown below, Plaintiffs are entitled to summary judgment in their favor. The material facts are not in dispute. Each Plaintiff is suffering harm traceable directly to the Defendants refusal to
recognize their State-sanctioned marriages. Each Defendants refusal to do so is the direct and proximate result of DOMA. Each Plaintiff has brought an as-applied challenge to DOMA because these refusals deny them legal rights and protections to which they would otherwise be entitled. There are no factual issues to resolve on any of these points, only a pure question of law: whether DOMA is unconstitutional as applied to these Plaintiffs. The answer to that question is clear. There are no legitimate or remotely plausible justifications for the federal governments continued refusal to recognize the Plaintiffs actual marital status. Thus, in addition to denying Defendants Motion to Dismiss, the Court should grant Plaintiffs Motion for Summary Judgment.
STATEMENT OF FACTS A. Federal Marriage-Based Laws, Programs, Rights, and Responsibilities.
Federal law presently conditions over a thousand different federal rights, responsibilities, and opportunities on whether an individual involved is married. See Affidavit of Gary D. Buseck, Ex. B (Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO-04-353R)). Many of these rights, responsibilities and opportunities, including those at issue in this litigation, pertain to benefits under particular federal programs, as well as the treatment of persons under the Internal Revenue Code. In these contexts, federal law often affords more favorable treatment, or greater rights, to married persons than it does to single persons. Plaintiffs concur with, and adopt, Defendants descriptions of each of the specific programs at issue in this case. See Defendants Motion to Dismiss (MTD) at 5-12.2 Federal law often provides advantageous treatment to married individuals to further specific federal polices. In the case of the Federal Employees Health Benefits Act (FEHBA), the stated purpose is twofold: to make federal employment competitive with benefits offered in
Plaintiffs as-applied challenge is to their exclusion from specific federal benefits programs and tax advantages. However, it is worth noting that federal law looks to marital status across a vast range of laws and programs, and that marriage can be advantageous or disadvantageous, and can involve pecuniary as well as nonpecuniary rights and responsibilities. For instance, married persons enjoy the right under federal law to invoke the marital confidences and spousal privileges in federal court, see Fed. R. Evid. 501, the right to sponsor a non-citizen spouse for naturalization, see 8 U.S.C. 1430, and to obtain conditional permanent residence for that spouse, id. 1186b(2)(A). Married persons are also subject to a number of legal obligations, such as conflict-of-interest rules governing federal employment and participation in federally funded programs, e.g., 5 U.S.C. 3110, restrictions on employment with or appointment to the judiciary, see 28 U.S.C. 458, and various ownership limitations and certifications related to telecommunications and broadcast licensing, see e.g., In re Applications of Algreg Cellular Engineering, 12 FCC Rcd 8148, 8181-82 (FCC 1997), to cite but a few examples. In the wellknown case of the so-called marriage penalty, some married persons receive less favorable treatment under the tax code than similarly situated unmarried persons. And, as presented in the related case currently pending before the Court, federal law also affects individuals rights as married persons under a number of State programs that implicate federal funds. See Commonwealth of Mass. v. U.S. Dept of Health and Human Servs., No. 1:09-cv-11156-JLT. 3
the private sector, and to provide support and security for federal wage-earners and their families. See H.R. Rep. No. 86-957 at 1-2 (1959) (FEHB H. Rep.) (goal was to close the gap and improve the competitive position of the government vis--vis private enterprise in the recruitment and retention of competent civilian personnel, and recognizing urgent need for an employee health benefits program as essential to protect wage-earners and their families); Natl Fedn of Fed. Employees v. Devine, 679 F.2d 907, 913 n.9 (D.C. Cir. 1982) (purpose of the FEHBA is to protect federal employees against the high and unpredictable costs of medical care along with ensuring that the federal government provides benefits sufficient to make itself competitive in employee recruitment and retention); Houston Cmty. Hosp. v. Blue Cross and Blue Shield of Tex., Inc., 481 F.3d 265, 271 (5th Cir. 2007) (same). The same concerns animated the provision of supplemental vision and dental insurance (FEDVIP). See S. Rep. No. 108-393, at 1-2 (2004). In the case of the Social Security program, also at issue in this case, benefits are provided to married and widowed individuals as an economic safety net. Workers earn benefits through their paid labor and contributions to the economy so that they can later rely on that economy to care for them and their dependents in old age and during periods of disability. See Califano v. Goldfarb, 430 U.S. 199, 208 (1977) (purpose of Social Security is to protect beneficiaries against the economic consequences of old age, disability, and death); see also Flemming v. Nestor, 363 U.S. 603, 609 (1960). Similarly, federal tax law has long permitted married couples to pool their income and deductions on a joint return and compute tax on their combined income as an economic unit. See, e.g., Helvering v. Janney, 311 U.S. 189, 192, 194-95 (1940) (approving the principle expressed in an opinion of the Solicitor of Internal Revenue, Sol. Op. 90, 4 C.B. 236, 238 (1921), that a joint return is treated as the return of a taxable unit and acknowledging Congressional
policy set forth in substantially the same terms for many years . . . to provide for a tax on [a married couples] aggregate net income); H.R. Rep. No. 67-350, at 13 (1921), as reprinted in 1939-1 C.B. (Pt. 2) 168, 178 (referencing a married couples right in all cases to make a joint return and have the tax computed on [their] combined income.). Cf. also S. Rep. No. 97-144, at 127 (1981), as reprinted in 1981 U.S.C.C.A.N. 105, 228 (The committee believes that [spouses] should be treated as one economic unit for purposes of estate and gift taxes, as they generally are for income tax purposes.). B. Plaintiffs Have Been Harmed Because Defendants Refuse to Acknowledge that They are Married.
Each Plaintiff is married or a surviving spouse, and each Plaintiff has been concretely harmed because DOMA requires Defendants to refuse to acknowledge that reality. Neither the harms suffered by each Plaintiff, nor the fact that such harms have been or are being caused by Defendants treatment of Plaintiffs as unmarried, is reasonably disputed. Several of the Plaintiffs seek spousal protections based on their (or their spouses) employment with the United States government. Plaintiff Nancy Gill, a 22-year employee of the U.S. Post Office, has been unable to add her spouse, Plaintiff Marcelle Letourneau, to her health insurance coverage, vision benefit plan, or flexible spending account. As a consequence,
Plaintiff Letourneau has had to remain in the work force to have access to health insurance rather than stay at home with their two children for several years. Their family also has suffered increased medical expenses as a result. Plaintiffs Statement of Undisputed Facts Pursuant to Local Rule 56.1 in Support of Plaintiffs Motion for Summary Judgment (SUF), Nos. 4-11; Joint Affidavit of Nancy Gill & Marcelle Letourneau, 2, 27-28. Plaintiff Martin Koski, a retiree from the Social Security Administration, has similarly been denied the right to add his spouse, Plaintiff James Fitzgerald, to his health insurance coverage. SUF, Nos. 13-16. The
couple has been forced to incur additional insurance expenses. SUF, Nos. 17-18. They also suffer from the fear that James may be unable to maintain even his current, inferior coverage due to his poor health, and could be left without insurance altogether. Joint Affidavit of Martin Koski & James Fitzgerald, 6. Plaintiff Dean Hara is the surviving spouse of Gerry Studds, a retired Member of the United States Congress. SUF, Nos. 19-20. Dean has been denied both health insurance and the survivor annuity normally available to surviving spouses, and has been forced to incur significant costs in purchasing his own insurance. SUF, Nos. 23-25; Affidavit of Dean T. Hara, 19-20. Other Plaintiffs have suffered adverse income tax consequences from being treated as single for purposes of the Internal Revenue Code. Plaintiffs Melba Abreu and Beatrice
Hernandez, respectively the chief financial officer of a Boston-area non-profit organization and a writer developing a business, have been forced to file any federal income tax returns as single, notwithstanding the fact that they have been married since 2004, and have borne a higher aggregate tax burden as a result. SUF, Nos. 32-37; Joint Affidavit of Melba Abreu & Beatrice Hernandez, 3-4. Mary Ritchie, a longtime Massachusetts State Trooper, has been unable to contribute to a spousal IRA for her spouse, Kathleen Bush, who has temporarily sacrificed her career in order to be at home with their children and volunteer in their school and community activities. The couple has incurred additional income tax burdens due to both their inability to file jointly and Marys inability to contribute to Kathleens IRA. SUF, Nos. 26-31; Joint
Affidavit of Mary Ritchie & Kathleen Bush, 4-5, 21. Plaintiffs Marlin Nabors and Jonathan Knight, a college administrator and university finance associate respectively, have similarly faced higher income taxes because of their inability to file jointly. SUF, Nos. 38-43; Joint Affidavit of Marlin Nabors and Jonathan Knight, 5-6. Plaintiffs Mary and Dorene Bowe-
Shulman one an attorney employed by the Commonwealth of Massachusetts and the other a cancer survivor who has recently started her own business receive health insurance provided through Marys employment with the Commonwealth. Joint Affidavit of Mary and Dorene Bowe-Shulman, 6-9. But the couple has been forced to pay federal income taxes on Dorenes benefits, in addition to being unable to file jointly, both of which have resulted in their paying higher taxes than a similarly situated opposite-sex family. SUF, Nos. 45-48; Joint Aff., 10-11. Several of the Plaintiffs although they and their spouses have paid into the Social Security system have been denied the programs spousal protections. Several are widowers who have been denied benefits to which they would have been entitled if their deceased spouses had been wives rather than husbands. Plaintiff Randell Lewis-Kendell, a shop owner, was partnered with and then married to his now-deceased husband for 30 years. Affidavit of Randell Lewis-Kendell, 2-5, 8, 16. Plaintiff Herbert Burtis and his late husband were both musicians and music teachers who were together 60 years. Affidavit of Herbert Burtis, 3-6, 17. Plaintiff Dean Hara and Representative Studds had been together 16 years before the latters death. Hara Aff., 2, 9-10. Each widower applied for and was denied the One-Time Lump-Sum Death Benefit of $255 normally available upon the death of a spouse. SUF, Nos. 21-22, 56-57, 60-61. Plaintiff Burtis, relying on the higher earnings record of his spouse, also was denied the survivor benefit normally available to a widower, totaling about $700 per month since his spouses death in August 2008. SUF, Nos. 62-64; Burtis Aff., 17. Plaintiffs Jo Ann Whitehead and Bette Jo Green, together nearly 30 years, are both current Social Security recipients. As a labor and delivery nurse for many years, Bette Jo always earned more than Jo Ann, a garden educator. But Jo Ann has been denied the spousal benefit normally available to the lower-earning spouse. SUF, Nos. 50-53; Joint Affidavit of Bette Jo Green & Jo Ann Whitehead, 1, 3-4, 10-11. Jo
Ann is also extremely concerned about her financial circumstances if Bette Jo, a two-time cancer survivor, predeceases her and Jo Ann is unable to receive the Social Security spousal survivor benefit. SUF, No. 54. Apart from these concrete financial losses, many Plaintiffs have also faced additional harm from the confusion and uncertainty that arise from having their marriages not count for many purposes, causing anxiety in everyday situations and inviting discrimination by private parties. For example, after his husband passed away, Plaintiff Lewis-Kendell repeatedly
contacted the company holding his deceased husbands mortgage. However, despite repeated efforts over a number of months, the company refused to talk to him and seemed incapable of understanding that he was the mortgagors widower. Lewis-Kendell Aff., 25. He has
experienced DOMA as send[ing] a message to businesses and others that my marriage was not real thus add[ing] stress and confusion to everyday situations. Id. Other Plaintiffs have similarly experienced DOMA as devaluing their marriages. Separate Statement of Non-
Adjudicative Facts for Purposes of Determining the Level of Scrutiny for Plaintiffs Equal Protection Claim (SN-AF), Nos. 10-22. C. The 1996 Defense of Marriage Act.
Normally, each Plaintiff would be entitled to the legal benefits and protections afforded to married (or widowed) persons under each of the various federal programs at issue and would be treated the same as any other married person. But they are denied those rights and benefits because of Section 3 of the 1996 Defense of Marriage Act, in which Congress excluded samesex couples from any marriage-based rights or benefits arising under federal law:
CHAPTER 1--RULES OF CONSTRUCTION 7. Definition of marriage and spouse In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7. Prior to DOMAs enactment, the Hawaii Supreme Court had indicated that same-sex couples might be entitled to marry under the States constitution, raising the possibility that same-sex couples would begin marrying in the near future. See Baehr v. Lewin, 852 P.2d 44, 5967 (Haw. 1993). The House Judiciary Committees Report on DOMA cited Baehr as part of an orchestrated legal assault being waged against traditional heterosexual marriage, and stated that this development threatens to have very real consequences . . . on federal law. H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (H. Rep.) (attached as Exhibit D to Affidavit of Gary D. Buseck). Specifically, the Report warned that a
redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. Id. at 10.3 The House Report acknowledged that federalism constrained Congresss power, and that [t]he determination of who may marry in the United States is uniquely a function of state law. Id. at 3. Nonetheless, the Report stated that Congress was not supportive of (or even indifferent to) the notion of same-sex marriage, id. at 12, and embraced DOMA as furthering Congresss interests in, inter alia, defend[ing] the institution of traditional heterosexual marriage, id. The
Baehr never took effect in Hawaii, as the State ultimately amended its Constitution to allow the State legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, 23. However, five States now extend full marriage rights to same-sex couples (Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside). 9
Report also claimed interests in encouraging responsible procreation and child-rearing, and conserving scarce resources. Id. at 13, 18. Another purpose of the Act, as stated by the House Report, was to reflect Congresss moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. Id at 16 (footnote omitted). The remarks of Rep. Henry Hyde, then-Chairman of the House Judiciary Committee, were blunt but typical: Most people do not approve of homosexual conduct . . . and they express their disapprobation through the law. . . . It is . . . the only way possible to express this
disapprobation. 142 CONG. REC. H7480 (daily ed. July 12, 1996). In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it immoral, depraved, unnatural, based on perversion and an attack upon Gods principles.4 They argued that marriage by gays and lesbians would demean and trivialize heterosexual marriage5 and might indeed be the final blow to the American family.6 Although DOMA amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges dependent upon marital status, the relevant committees did not engage in any meaningful examination of the scope or effect of the law, much less the way in 142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith).
5 4
Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) ([Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . . Homosexuals and lesbians boast that they are close to realizing their goal legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is under direct assault by the homosexual extremists all across this country).
6
Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.). 10
which federal interests in the relevant programs would be affected. Congress did not, for instance, hear any testimony from agency heads regarding how DOMA would affect federal programs, nor from historians, economists, or specialists in child welfare. Instead, the House Report simply observed that the terms marriage and spouse appeared hundreds of times in various federal laws and regulations, and that those terms were generally not defined. H. Rep. (Buseck Aff., Ex. D) at 10. The vast reach of the Act did not become fully clear until January 1997, months after its passage, when the General Accounting Office issued a report stating that DOMA implicated 1,049 federal laws, touching on everything from entitlement programs like Social Security to employee issues to taxation. Buseck Aff., Ex. A (Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16)). ARGUMENT Defendants pending Motion to Dismiss and Plaintiffs pending Motion for Summary Judgment both turn on the same legal question: whether DOMA violates the Equal Protection guarantee of the Fifth Amendment as applied to Plaintiffs. In the interest of judicial economy, these motions should be decided together and should be decided now. The material facts are undisputed: each Plaintiff has been harmed by DOMAs requirement that people married to a person of the same sex must be treated for federal purposes as though they were unmarried. As shown below, the constitutionality of DOMA should be examined with heightened scrutiny for three independent reasons: (1) it represents an unprecedented intrusion upon a domain traditionally reserved to the States; (2) it burdens the core liberty interest in the integrity of ones family; and (3) it unfairly discriminates against gay men and lesbians. DOMA cannot survive such heightened review. Nor can it survive even rational basis review. The post-hoc rationalizations that the government advances for DOMA that it
preserves the status quo, furthers an interest in incremental[ism], and preserves 11
consistency by ensuring that all gay and lesbian people are treated alike, whether they are married or not are insubstantial and counterfactual. And the reasons Congress actually
articulated when it enacted DOMA reasons the government (wisely) declines to defend here are either nonsensical or reflect outright animus against gays and lesbians. Under either the old or the new justifications, DOMA violates the equal protection guarantee of the Fifth Amendment and cannot constitutionally be applied to Plaintiffs. I. PLAINTIFFS EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED REVIEW. As Plaintiffs explain in Part III infra, the federal governments discrimination against Plaintiffs cannot be justified by reference to any legitimate or rational interest. The standard governing review of DOMA, however, should be higher. By upending the traditional balance between the State and federal governments, disparately burdening fundamental interests in family relationships, and drawing an invidious classification based on sexual orientation, DOMA triggers heightened scrutiny. A. The Court Should Closely Scrutinize DOMAs Intrusion into Family Law, an Area Traditionally Reserved to the States.
DOMA marks a stark, and unique, departure from the respect and recognition the federal government has long afforded to State marital status determinations. The absence of any
historical precedent for legislation that regulates the status of family relationships at the federal level demonstrates that there are no legitimate federal interests in this area. Because it represents such a dramatic departure from federalist tradition, and implicates the core State power to govern domestic relations, DOMA should be subjected to more searching constitutional scrutiny than that applicable to conventional social or economic legislation. See Romer v. Evans, 517 U.S. 620, 633 (1996) (imposition of a broad and unprecedented legal disability on one group of citizens requires closer equal protection scrutiny than conventional legislation). 12
1.
Determining Marital Status Is Exclusively a State Concern.
Under the basic structure of our constitutional scheme, the power to establish criteria for marriage, and to issue determinations of marital status, lies at the very core of the States sovereign authority.7 The Supreme Court has made this point repeatedly and emphatically. See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) ([t]he whole subject of the domestic relations . . . belongs to the laws of the States and not to the laws of the United States) (citing In re Burrus, 136 U.S. 586, 593-94 (1890)); United States v. Morrison, 529 U.S. 598, 617 (2000) (regulation of marriage touches on the police power, which the Founders denied the National Government and reposed in the States.); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); id. at 716 (Blackmun, J., concurring) (declarations of status, e.g. marriage, annulment, divorce, custody, and paternity lie at the core of domestic relations law reserved to States); Sosna v. Iowa, 419 U.S. 393, 404 (1975) (domestic relations are an area that has long been regarded as a virtually exclusive province of the States); Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877) (State has the absolute right to prescribe the conditions on which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved), overruled on other grounds, Shaffer v. Heitner, 433 U.S. 186 (1977). Even when the Supreme Court has been divided on the scope of federal power vis--vis the States, it has unanimously reaffirmed that regulation of familial relations, including marriage, remains beyond the scope of federal power. See, e.g., United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting reading of Commerce Clause that could lead to federal regulation of family law (including
7
State power over marital relations is of course itself bounded by the Constitution. See, e.g., Turner v. Safley, 482 U.S. 78 (1987) (holding unconstitutional State marriage law limiting ability of prisoners to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (holding unconstitutional State marriage law limiting access to marriage based on financial status); Loving v. Virginia, 388 U.S. 1 (1967) (holding unconstitutional State marriage law limiting access to marriage based on race). 13
marriage, divorce, and child custody), an area where States historically have been Sovereign); id. at 585 (Thomas, J., concurring); id. at 624 (Breyer, J., dissenting). 2. Marital Eligibility Has Always Varied Across States, Often Dramatically.
The differences that exist among the States today with respect to marriage by same-sex couples (five States presently extend marital rights to same-sex couples) is far from unique in our nations history.8 In accordance with their sovereign power over family law in the federalist system, and their right to experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise, United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring), the States have changed marital eligibility requirements in many ways over time. See George Elliott Howard, Ph.D., A History of Matrimonial Institutions (1904) (changing and varied State policies on marital eligibility); Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982) (same); Randall Kennedy, Interracial Intimacies 219 (2003) (same, with respect to interracial marriages). Historically, evolving eligibility criteria for marriage have frequently caused dramatic State-to-State differences in who could or could not marry. Interracial marriage bans rose and fell State-by-State. See Howard; see also Grossberg at 200. There was a substantial split starting in the middle of the 19th century between States that followed the English common law regarding the age for marriage (12 for women and 14 for men) and those that imposed statutory minima (averaging 16 for women and 18 for men). See id. at 208-09. There was a longstanding divide between States in New England and the South that permitted first-cousin marriage while
8
The five States that currently extend marriage eligibility to same-sex couples represent a minority. However, it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory . . . New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 14
banning marriages to affinal relatives (i.e. relatives related by marriage rather than by blood), and States that followed the Western American System banning first-cousin marriages while permitting affinal ones. Id. at 212-13. Over time, the Western American System generally prevailed as many States gradually eliminated affinal restrictions on marriage, while, on the other hand, bans on first-cousin marriages and even second-cousin marriages gradually spread throughout the 19th century. Id. at 213-16. Certain States later implemented marital restrictions based on health and mental capacity, although not uniformly or at the same time. Id. at 217, 221-22. And, of course, States have long had varying rules regarding common-law marriages. Although such marriages had been recognized back to colonial times, by 1919, 17 States had declared them invalid by statute or court decision. See Fred S. Hall & Elisabeth W. Brooke, American Marriage Laws in Their Social Aspects 31-32 (1919). Even in more recent times, 13 states have continued to recognize common law marriage for some or all purposes. Homer Clark, Family Law 47 (1988). This history illustrates that differences among the States in their policies regarding who can marry, contentious State-by-State social and cultural debates about shifting eligibility requirements, and a fluid and changing legal landscape as different States gradually adopt different (and even conflicting) policies, are nothing new. Rather, what the government
characterizes as the evolving nature of this [marriage] issue, MTD at 18, is precisely what one would expect, and what has always happened in the past, in our system of dual sovereignty in which marriage policy is made at the State and not at the federal level. 3. Federal Law Has Long Relied Upon State Marital Status Determinations When Marital Status Is Relevant to Federal Law.
Despite the often dramatically different family law policies the States have pursued over time, federal reliance on State determinations of marital status is a longstanding tradition
15
implemented in federal common law, countless federal statutes, and federal regulations. This includes programs directly affecting Plaintiffs: federal income taxation, see, e.g., Dunn v. Commr of Internal Revenue, 70 T.C. 361, 366 (1978) (referencing number of decisions recognizing that whether an individual is married is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile)9; federal employee benefits, see 5 C.F.R. 843.102 (defining spouse by reference to State law); and Social Security survivor and death benefits, see 42 U.S.C. 416(h)(1)(A)(i) ([a]n applicant is the wife, husband, widow or widower of an insured person if the courts of the State of the deceaseds domicile would find such an applicant and such insured individual were validly married).10 Indeed, even in the absence of such express incorporation, the well-established rule has been that federal law affords recognition to familial status determinations as governed by the law of the relevant State. As the Supreme Court recognized in DeSylva v. Ballentine, 351 U.S. 570, 580 (1956), [t]he scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. . . . This is especially true when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter
See also Lee v. Commr of Internal Revenue, 64 T.C. 552, 556 (1975) (existence and dissolution [of marriage] is defined by State rather than Federal law), affd, 550 F.2d 1201 (9th Cir. 1977); Von Tersch v. Commr of Internal Revenue, 47 T.C. 415 (1975) (same for joint filing). Examples are endless. See, e.g., 20 C.F.R. 404.345 (Social Security) (If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.); see also, e.g., 38 U.S.C. 103(c) (Veterans benefits); 20 C.F.R. 10.415 (Workers Compensation); 45 C.F.R. 237.50(b)(3) (Public Assistance); 29 C.F.R. 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. 3.1(j) (Veterans Pension and Compensation). Indeed, the only federal statute other than DOMA of which Plaintiffs are aware that excludes legally married couples from the federal definition of marriage or spouse is another provision targeting same-sex couples, regarding burial in veterans cemeteries, enacted in 1975 (and superfluous at the time, given that no State then extended marriage rights to same-sex couples). See 38 U.S.C. 101(31); Pub. L. No. 94-169, 101(1)(G). 16
10
of state concern. Id.; see also, e.g., Spearman v. Spearman, 482 F.2d 1203, 1204-05 (5th Cir. 1973) (Federal Employees Group Life Insurance Act); United States v. Sacco, 428 F.2d 264, 268 (9th Cir. 1970) (1855 immigration statute conferring citizenship on women married to a citizen of the United States). Federal law governing eligibility for marriage, on the other hand, has been limited to situations in which the federal government exercises the police power, such as administration of the territories. See, e.g., Reynolds v. United States, 98 U.S. 145, 166 (1878). This is not to say that the federal government must tie rights or benefits to marriage alone; many federal programs condition eligibility for particular rights on other criteria in addition to marriage, such as the length of the marriage or the economic eligibility of the participants. Critically, however, the point of such supplemental criteria is not to call into question or redefine who is or is not married, but merely to implement particular federal interests in the context of specific laws or programs. For instance, even in the area of immigration, where the federal governments power is arguably at its most extensive, immigration law does not directly regulate who may marry. Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625, 1668 (2007). Rather, in situations where a citizen desires to bring her spouse to the United States, id., federal law looks both to (1) whether there is a valid marriage under State law; and (2) whether the couple married for love or in a sham, phony, empty ceremony intended only to facilitate immigration status for one of the spouses. Id. at 1672 (discussing Sacco, 428 F.2d at 270-71); see also 8 U.S.C. 1101(a)(35) (unconsummated marriages performed without the presence of both parties do not qualify for immigration
17
purposes). The point of these supplemental criteria is to implement distinct federal immigration interests (in policing fraud and allocating scarce visas), not to regulate marriage itself.11 4. DOMAs Radical Break from this Tradition Calls for Heightened Review.
DOMA uniquely breaks from this tradition by rewriting wholesale the U.S. Code, the Code of Federal Regulations, and various other rules to disadvantage married same-sex couples.12 Through its sheer breadth, DOMA in substance, if not in form, arrogates to the federal government a substantial portion of the power previously exercised only by the States to define eligibility for marriage and render decisions regarding marital status. Moreover, it does so in a manner that repudiates the family law of certain States while vindicating the law of others, which raises additional constitutional concerns. Cf. Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2512 (2009) (law that differentiates between the States must be justified by a showing the difference is sufficiently related to the problem it targets given the historic tradition that all States enjoy equal sovereignty) (internal citation omitted). The scope of federal programs is ultimately a question of federal law. But the historic federal practice of looking to and incorporating State law to determine marital status reflects a reality of the federal system of dual sovereignty: States, not the federal government, have responsibility over family law, and the federal government rarely if ever has a valid interest in disregarding determinations of family status made by the States, even within the scope of federal
Congress has contemplated regulating the marital relationship in the past, but when it has done so, it has not been by legislation but by proposing constitutional amendments tacitly acknowledging that regulating marriage is beyond the scope of its legislative powers. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611 (2004).
12
11
Prior to DOMA, there had been only six other such Rules of Construction sweeping across the entire federal code defining [w]ords denoting number, gender, and so forth; county; vessel; vehicle; company; and products of American Fisheries and the section had not been amended since 1951. U.S.C.A., T.1, Ch.1. 18
rights or federal programs. DOMA may pay lip service to federalist concerns by limiting its application to federal law, but there is no mistaking the reality of what it does: leverage the vast size and reach of the federal government in order to implement an all-purpose, national family law. As a practical matter, DOMA eviscerates the historic power of the States to say who is married. The concerns that such an exercise of federal power raises for the system of dual sovereignty, and its departure from centuries of federalist tradition, require close scrutiny of the interests advanced by Defendants to overcome an equal protection challenge. The absence of precedent for a measure imposing disadvantages is itself instructive; [d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional [equal protection] provision. Romer v. Evans, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). B. DOMA Should Be Subjected to Heightened Scrutiny Because it Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships.
The Government recognizes that Plaintiffs have a right to marry in their State and have exercised that right: Plaintiffs have married in Massachusetts. MTD at 3. But DOMA burdens the integrity of those marriages and by extension Plaintiffs most intimate family relationships. First, by its sweeping reclassification of the Plaintiffs as single for any and all federal purposes, DOMA erases their marriages under federal law. Second, by throwing Plaintiffs marriages into a confusing legal status in which their marriages count for some purposes but not others, it erases much of the meaning their marriages would otherwise have in both public and private settings and relegates them to second-class status. DOMA should thus face heightened scrutiny for the additional reason that it burdens Plaintiffs constitutionally protected interest in the integrity of their families.
19
The right to maintain family relationships free from undue government restrictions is a long-established and fundamental liberty interest. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (acknowledging freedom of personal choice in matters of marriage and family life); Stanley v. Illinois, 405 U.S. 645, 651-52 (1972); id. at 658 (denying non-marital father an opportunity to resume custody on mothers death results in dismemberment of his family); Lawrence v. Texas, 539 U.S. 558, 574 (2003) (confirming that persons in a homosexual relationship may [also] seek autonomy for personal decisions relating to marriage, procreation, family relationships, child rearing, and education).13 Classifications that disparately burden fundamental rights demand heightened Equal Protection scrutiny regardless of whether those disadvantaged constitute a suspect class. See, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986) (discrimination among veterans depending on whether they entered service from New York requires strict scrutiny due to effect on right to travel); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 672 (1966) (poll tax subject to strict scrutiny due to effect on right to vote); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659-60 (1994) (law discriminating between different types of media subject to intermediate scrutiny due to impairment of First Amendment rights). Indeed, even when interests impaired by an unequal classification are not considered fundamental, their nature and importance informs the level of review. See, e.g., Bush v. Gore, 531 U.S. 98, 104 (2000) (holding that despite the absence of fundamental right to vote for President, voters were
This case does not involve giving formal recognition to any relationship that homosexual persons seek to enter, Lawrence, 539 U.S. at 578, and Plaintiffs are not seeking a right to marry. It rather concerns the different, and more burdensome, treatment of Plaintiffs vis--vis the class of opposite-sex married couples, notwithstanding the formal recognition of Plaintiffs marital and family relationships by the Commonwealth of Massachusetts. 20
13
entitled to equal dignity and disparate recount standards violated the Equal Protection Clause); Romer, 517 U.S. at 631, 633 (striking down a classification interfering with ability of gay and lesbian persons to seek specific protection from the law and participate in transactions and endeavors that constitute ordinary civic life in a free society); M.L.B. v. S.L.J., 519 U.S. 102, 120, 127 (1996) (holding that although there is no fundamental right to appeal State judicial determinations, barriers to appeal by an indigent appellant in parental termination proceeding violated the Equal Protection Clause); Plyler v. Doe, 457 U.S. 202, 219-21 (1982) (holding that although illegal aliens are not a suspect class and public education is not fundamental right, the importance of the interest in education warrants striking down measure restricting access to public school). Plaintiffs have married and formed family relationships. Yet those family relationships are burdened by Defendants wholesale refusal to afford their marriages any legal recognition; Plaintiffs are unable to enjoy many of the benefits of marriage that constitute ordinary civic life in a free society and that are taken for granted by different-sex married couples. Romer, 517 U.S. at 633. Defendants assertion that heightened scrutiny is unwarranted because there is no right to receive federal benefits on the basis of . . . marital status, MTD at 15, misses the forest for the trees. DOMA does not merely deprive Plaintiffs of discrete selected federal benefits (although it does), it sweeps so broadly and indiscriminately as to effect a virtual change of their legal status from married to single. In so doing, it strips Plaintiffs closest familial relationships of much of their legal meaning, depriving them not only of the multitude of rights and benefits that accrue to marriage under federal law,14 but also of the unique public validation, social recognition, respect, support and private and personal value that come with marriage.
14
Defendants characterize these as benefits, but the legal effect goes well beyond federal entitlement programs. See supra n.2. 21
Section 3 even conscripts Plaintiffs into denying the existence of their own marriages through civil and criminal statutes that prohibit them from acknowledging those marriages in dealings with the federal government, such as on federal forms. This enforced reclassification of Plaintiffs closest and most intimate family relationships by the federal government interferes with Plaintiffs relationships beyond the federal programs specifically at issue by signaling that their marriages lack full legal effect, thereby causing confusion among third parties and encouraging private disrespect for Plaintiffs relationships. In fact, several Plaintiffs have experienced adverse consequences in social and business settings as a result of their marriages legal status being unclear or confusing. See SN-AF, Nos. 15-16, 18, 20. By stripping Plaintiffs marriages of much of their legal meaning, DOMA also deprives them of their perceived legitimacy and the benefits that flow from it. In short, by complicating what should be perfectly simple, imposing confusion and stigma, and undermining the legal effect of State-sanctioned marriages, DOMA substantially burdens Plaintiffs fundamental interest in their existing familial relationships. It is this
wholesale undermining of their State-sanctioned family relationships, and not merely Plaintiffs exclusion from discrete federal benefits, that necessitates heightened scrutiny. C. DOMA Should Be Subjected to Heightened Discriminates on the Basis of Sexual Orientation. Scrutiny Because it
Finally, Section 3 also requires heightened scrutiny because it discriminates based on sexual orientation. Courts apply heightened scrutiny to laws that single out a class of persons who have experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985) (citations omitted). When a law classifies persons based upon a characteristic that is seldom relevant to the achievement of any
22
legitimate state interest, it is assumed to reflect prejudice and antipathy a view that those in the burdened class are not as worthy or deserving as others. Id. at 440. DOMA on its face discriminates against gay and lesbian persons and should face heightened scrutiny for this reason as well. Plaintiffs acknowledge that the First Circuit recently applied rational basis scrutiny to the law excluding gay and lesbian persons from military service, and noted in its opinion that homosexuals are not a suspect class. Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009). Defendants make too much of this passage. See MTD at 16. The Cook courts analysis demonstrates that the holding arose in the specific and limited context of the challenge to the militarys policy, and that the panel limited itself to the question of whether the Supreme Courts decisions in Romer v. Evans and Lawrence v. Texas mandate[d] the application of heightened scrutiny. Cook, 528 F.3d at 61. The court did not consider whether sexual orientation is a suspect classification under the doctrinal factors that govern such an analysis, nor, importantly, was there any record before the court on which it even could have done so. See id. at 60-62. Nor did the court discuss, or appear to consider, whether
classifications based on sexual orientation should be treated as quasi-suspect or evaluated under intermediate scrutiny. As a decision dependent upon its underlying facts is not
necessarily controlling precedent as to a subsequent analysis of the same question on different facts and a different record, Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993), Cook should not foreclose inquiry into whether sexual orientation is a suspect or quasi-suspect classification based on application of those factors. Plaintiffs seek such an inquiry now,
supported by expert affidavits submitted in support of this motion. SN-AF, Nos.23-53; see
23
generally Affidavit of Michael Lamb, Ph.D.; Expert Affidavit of George Chauncey, Ph.D.; Expert Affidavit of Gregory M. Herek, Ph.D.; and Affidavit of Gary M. Segura, Ph.D. There is no rigid test for determining whether a particular classification qualifies as suspect, but the courts consistently examine whether the group adversely affected has experienced a history of invidious discrimination. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); Medeiros v. Vincent, 431 F.3d 25, 29 n.2 (1st Cir. 2005) (a suspect class is defin[ed] . . . as a class of persons characterized by some unpopular trait or affiliation that would reflect any special likelihood of bias against them on the part of the ruling majority) (citations omitted). Courts also look to whether the characteristic defining the group is unrelated to the ability to perform or contribute to society. Frontiero v. Richardson, 411 U.S. 677, 686 (1973). Although these two factors are most important, see, e.g., Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009), courts also have considered the groups minority status and/or relative lack of political power, see Plyler, 457 U.S. at 218 n.14; Lyng v. Castillo, 477 U.S. 635, 638 (1987) (minority or politically powerless) (emphasis added), as well as whether group members have obvious, immutable, or distinguishing characteristics that define them as a discrete group. Bowen v. Gilliard, 483 U.S. 587, 602 (1987). Adverse classifications based on sexual orientation meet all four criteria. 1. Gays and Lesbians Have Experienced a History of Discrimination.
It is beyond dispute that for centuries there have been powerful voices to condemn homosexual conduct as immoral, Lawrence, 539 U.S. at 571, and that state-sponsored condemnation of homosexuality has led to discrimination both in the public and in the private spheres. Id. at 575. Gays and lesbians have been subjected to violence and harassment, denied jobs, labeled mentally ill, and prosecuted for engaging in intimate conduct with loved ones. SN-AF, Nos. 23-25; see generally Chauncey Aff., 4-79. This history alone suggests that legal 24
classifications based on sexual orientation are especially likely to reflect bias and are unlikely to reflect the pursuit of legitimate objectives. See Plyler, 457 U.S. at 218 n.14. 2. Sexual Orientation Is Unrelated to the Ability to Contribute to Society.
As evidenced by the Plaintiffs in this case, sexual orientation has no bearing on an individuals ability to contribute to society. SN-AF, Nos. 28-32; see Herek Aff., 7, 13-16; Lamb Aff., 27-39. The Plaintiffs, for example, include public servants like a State Trooper, teachers, and a government attorney. They have made the commitment to form families
providing mutual support and, for those with children, a good setting for raising them. All have contributed to society, as have millions of their fellow gay and lesbian Americans. 3. Gays and Lesbians Are a Minority and Face Significant Obstacles to Achieving Protection from Discrimination Through the Political Process.
Gay men and lesbians are a minority in the United States. SN-AF, No. 39; see Herek Aff., 7, 16, 34-35. Also, despite recent progress, [t]he civil rights enjoyed by gay and lesbian Americans vary substantially from region to region and are still subject to the vicissitudes of public opinion. NA-SF 26; see Chauncey Aff., 79. While federal laws have long prohibited discrimination on the basis of race, sex, and nationality classifications the courts have held to warrant heightened scrutiny gays and lesbians have been unable, after years of effort, to enact similar laws to protect them. SN-AF, Nos. 41-42, 47; see Segura Aff., 9, 17-67. Numerous State marriage bans, along with DOMA itself, are emblematic of the limited political power exercised by gays and lesbians. Segura Aff., 17, 24. 4. Sexual Orientation Is a Defining Characteristic of a Persons Identity.
Finally, [s]exual orientation and sexual identity . . . are so fundamental to ones identity that a person should not be required to abandon them in order to avoid discrimination. Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other
25
grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). Moreover, sexual orientation is extremely resistant to change. SN-AF, Nos. 50-52; see Herek Aff., 17-20. As with
classifications such as religion and alienage, which are treated as inherently suspect, City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976), this more than satisfies the requirement of obvious, immutable, or distinguishing characteristics that define them as a discrete group. Bowen, 483 U.S. at 602. II. DOMA FAILS HEIGHTENED SCRUTINY. Where heightened (strict or intermediate) scrutiny applies, [t]he justification must be genuine, not hypothesized or invented post hoc in response to litigation. United States v. Virginia, 518 U.S. 515, 533 (1996) (emphasis in original). Since Defendants rely exclusively on justifications hypothesized or invented post-hoc in response to litigation, id., see MTD 18, and the genuine contemporaneous justifications for DOMA are readily disposed of, see Part III.B infra, the Court need go no further. Defendants entire effort to defend DOMA by conjuring up new and less-offensive justifications than those actually stated by Congress is categorically misplaced if heightened scrutiny applies. III. DOMA FAILS EVEN RATIONAL BASIS REVIEW. Defendants urge application of the rational basis standard, but DOMA fares no better under that test. Even rational basis scrutiny requires that classifications be rationally related to a legitimate government interest. Cleburne, 473 U.S. at 446; United States Dept of Agric. v. Moreno, 413 U.S. 528, 533 (1973). Courts must ensure that disadvantages are not imposed arbitrarily or for improper reasons. Romer, 517 U.S. at 635 (striking down measure based on bare desire to harm gay and lesbian persons); Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338, 347-48 (D.P.R. 2008) (striking down measure for which cultural nationalism was the only logical explanation). That is precisely what DOMA does. 26
Rational basis review is not toothless. Matthews v. de Castro, 429 U.S. 181, 185 (1976). First, although rational basis review is not a license for courts to judge the wisdom, fairness, or logic of legislative choices, FCC v. Beach Communication, Inc., 508 U.S. 307, 312 (1993), the interest claimed must still be legitimate, meaning that it must not only be a proper basis for government action, but also that it must be properly cognizable by the governmental body at issue, Cleburne, 473 U.S. at 448, and relevant to interests the classifying body has the authority to implement. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting Cleburne, 473 U.S. at 441). This assures that the interest supposedly advanced is within the purview of those making the classification. See, e.g., Plyler, 457 U.S. at 225
(overturning State law discriminating against aliens and noting that although it is a routine and normally legitimate part of the business of the federal government to classify based on the basis of alien status . . . only rarely are such matters relevant to legislation by a state) (internal citation omitted); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 114-15 (1976) (Civil Service Commission could not justify rule barring employment of aliens because asserted interests in encouraging nationalization were not matters which are properly the business of the Commission). As demonstrated below, this concern is particularly acute here, where the federal government has legislated in an area traditionally a matter of State, rather than federal, concern. See Parts I.A supra and III.B.2 infra. Second, the classification must be narrow enough in scope and grounded in sufficient factual context to ascertain some relation between the classification and the purpose it serve[s]. Romer, 517 U.S. at 632-33; Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997). The classification drawn must find some footing in the realities of the subject addressed by the legislation, Heller v. Doe, 509 U.S. 312, 321 (1993), and the
27
government may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Cleburne, 473 U.S. at 447; Garrett, 531 U.S. at 366 n.4 (measure will fail rational basis review where the purported justifications . . . ma[k]e no sense in light of how the [government] treated other groups similarly situated in relevant respects.). As the Supreme Court made clear in Romer, rational basis review will invalidate a measure whose sheer breadth is discontinuous with the reasons offered for it . . . . 517 U.S. at 632. See also, e.g., Diffenderfer, 587 F. Supp. 2d at 347-48 (invalidating Puerto Rican election commissions longstanding policy of providing ballots only in Spanish). Third, although the government bears a lesser burden to show facts supporting a measure than under heightened scrutiny, the requirement of a reasonably conceivable state of facts still demands that the claimed factual basis for a categorization be plausible. A measure will fail rational basis review when all the proffered reasons for a law are clearly and manifestly implausible. Lofton v. Secy of Dept of Children and Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., concurring); accord Romer, 517 U.S at 635 (rejecting justifications where [t]he breadth of the [measure] is so far removed from these particular justifications that we find it impossible to credit them); Eisenstadt v. Baird, 405 U.S. 438, 449 (1972) (law discriminating between married and unmarried persons in access to contraceptives so riddled with exceptions that the interest claimed by the government cannot reasonably be regarded as its aim). As shown below, the interests asserted on behalf of DOMA fail these tests. A. The Interests Asserted By the Government Are Unpersuasive.
To their credit, Defendants acknowledge that the interests that actually motivated Congress to impose disadvantages on Plaintiffs and other married gay and lesbian couples cannot pass constitutional muster. They concede that Congresss stated interests in promoting 28
responsible procreation and the raising of children by both of their biological parents cannot support discrimination against same-sex couples. See MTD at 19 n.10. And they make no effort to defend the other interests that Congress enunciated while enacting DOMA.15 Instead Defendants hypothesize new reasons for denying recognition to married same-sex couples: (1) maintain[ing] the status quo, (2) respond[ing] to new social phenomena one step at a time and . . . adjust[ing] national policy incrementally, and (3) avoiding a legal regime in which [f]ederal rights would vary dramatically from State to State. MTD at 18. DOMA in fact accomplishes the opposite of these hypothesize[d] post-hoc interests, which are in any event far too weak to provide any rational justification. 1. DOMA Does Not Maintain the Status Quo, and Continuing the Exclusion of Married Same-Sex Couples from Marital Benefits Is Not an Interest.
Defendants first assert that Congress was entitled to maintain the status quo pending further evolution in the states because same-sex marriage is a contentious social issue. MTD at 18. Tellingly, they cite not a single case for the proposition that maintain[ing] the status quo is itself a government interest. It is at best a description of what the law does, not a reason for doing it. And it is not even an accurate description, as the status quo prior to DOMA had been for the federal government to recognize and accept State determinations of marital status, even in the face of substantial differences among the States regarding eligibility for marriage and divorce. See Part I.A.3 supra. DOMA upends, rather than preserves, this longstanding federalist tradition. Id.
15
Those interests were defending and nurturing the institution of traditional, heterosexual marriage, defending traditional notions of morality, protecting state sovereignty and democratic self-governance, and preserving scarce government resources. See H. Rep. (Buseck Aff., Ex. D) at 12-18. Although the government does not rely on them, Plaintiffs address these interests in Parts III.B infra. 29
Defendants get no further by noting that the extension of marriage rights to same-sex couples is contentious. MTD at 18. Under our Constitution, the States have the authority to define family relationships, including eligibility requirements for marriage. See Part I.A.1 supra. The choice of some States to extend marriage to same-sex couples may not be universally supported. But the mere existence of policy differences among States or citizens has never been a basis for establishing national marriage rules in the past and does not create a new federal interest in doing so now. Nor does the fact that the extension of marriage rights to same-sex couples is relatively recent create any such interest. See MTD at 3 (asserting interest in
providing benefits only to those who have historically been permitted to marry). The mere fact that same-sex couples were excluded from marriage in the past is not a basis for continuing the exclusion at the federal level even after the exclusion has been lifted. Defendants rhetoric cannot hide the absence of a legitimate federal interest that is being served. 2. DOMA Is Not an Incremental Response to Marriage by Same-Sex Couples, and Incrementalism Alone Is not an Interest in the Absence of Some Underlying Purpose.
Nor is it plausible for Defendants to claim an interest in proceeding incrementally or one step at a time with respect to marriage by same-sex couples given the evolution in the states of marital eligibility rules. MTD at 13, 18. This supposed interest again bears no relation to the operation of the statute; there is nothing incremental about permanently denying married same-sex couples every marital right and benefit without qualification. Moreover, this argument confuses constitutionally appropriate justifications for laws with the appropriate means for pursuing those justifications. Incrementalism is a means to an end, not an end itself; and Defendants have not identified any proper end that is served by DOMAs supposed one step at a time approach.
30
To begin with, there is nothing incremental about DOMA. It is a permanent ban on federal recognition of marriages of same-sex couples. It does not sunset or provide for revision based on changing policies in the States. Nor does it afford some partial recognition to same-sex couples. Defendants have confused the Presidents stated support for DOMAs eventual repeal, see MTD 1, with what the law itself actually does. The fact that some in Washington now support repeal does not transform DOMA into something other than a complete and permanent refusal to treat Plaintiffs and other married same-sex couples as married for any federal purpose. Just as unpersuasive is Defendants suggestion that DOMA is somehow incremental because it permits autonomy and legal evolution at the state level, MTD at 19; see also MTD at 1 (DOMA preserv[es] the ability of the States to grant marriage rights to same-sex couples). States are empowered to regulate marriage eligibility because it is a core State power under the Constitution, not because DOMA graciously permits States to do so. See Part I.A.1 supra. DOMAs discrimination against Plaintiffs under federal law does not become justified (as incremental) simply because it stops short of unconstitutionally depriving them of their rights under State law as well. What Defendants really appear to be arguing is not that DOMA is incremental so much as that it could have been even more constitutionally problematic, if Congress had simply banned marriages of same-sex couples altogether. But the imposition of severe disadvantages on a class of people does not become permissible simply because one can hypothesize (and some participants in the political process might have desired to impose) even more egregious disadvantages. Here, barring States from marrying same-sex couples would plainly not be within the federal governments power in any event. And giving partial effect to the bare desire
31
of some to exclude same-sex couples from marriage hardly can be considered a justification for the discriminatory harms inflicted by DOMA. See Parts III.B.2 & III.B.4 infra. Even if Section 3 could be described as incremental, that is no justification in the absence of some problem being addressed or good being advanced. Defendants cite cases affirming the unremarkable proposition that incrementalism is an appropriate means of pursuing an independent governmental objective. See Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve public fisc, notwithstanding different treatment of other institutionalized groups); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting massive problems are not generally resolved at once but rather with reform moving one step at a time, addressing what seems most acute to the legislative mind; Congress may whittle away at [problems] over time); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address specialized problems which arise).16 But unlike in those cases, Defendants never identify a problem being ameliorated or a purpose being furthered, for there is none. 3. DOMAs Discrimination Among Married Persons Cannot Be Justified as Treating All Same-Sex Couples Alike, Whether Married or Not.
Also unconvincing is the governments asserted interest in preserving nationwide consistency in the distribution of marriage-based federal benefits and preventing federal rights [from] vary[ing] dramatically from State to State. MTD at 18.
16
Massachusetts v. EPA undermines rather than supports Defendants position. There, the Supreme Court expressly rejected the governments argument that its regulatory inaction should be immunized from judicial review because the government was following an incrementalist approach to climate change, holding that accepting that premise would doom most challenges to regulatory action and preclude meaningful judicial review. 549 U.S. at 524. 32
First, DOMA does not preserve[e] nationwide consistency in the distribution of marriage-based federal benefits it eliminates it. In the absence of DOMA, the rule would be the same for everyone: State law would determine marital status, as it always has. Instead, DOMA creates dramatic disparities in federal benefits by subjecting same-sex couples to a complete bar on federal marriage-based rights and benefits, whether they are married or not, and irrespective of whether identically situated opposite-sex couples would be entitled to those same rights and benefits. The only consistency this rule creates is between two groups that are not legally similarly situated: gay and lesbian persons who are married and gay and lesbian persons who are not. Defendants articulate no reason why these groups must be treated alike. The entire premise of federal marriage-based rights and benefit programs is that married and unmarried persons are not identically situated. And yet Defendants in effect claim an interest in ensuring that gay and lesbian married persons be denied those rights and benefits so that they can be equal to unmarried gay and lesbian persons. This interest cannot withstand scrutiny. See Garrett, 531 U.S. at 366 n.4 (measure will fail rational basis review where the purported justifications . . . ma[k]e no sense in light of how the [government] treated other groups similarly situated in relevant respects). Second, it is no answer that, in the absence of DOMA, federal rights would vary dramatically from state to state. MTD at 18. In the absence of DOMA, federal rights would be the same from State to State: they would turn on State marital status, as they always have. DOMA creates disparities not only among individuals, but also among States, as some States marriages are recognized and others are not. It is true that married same-sex couples exist in some States and not others. But that is not a problem calling out for a federal solution. It is the natural consequence of life under a system of dual sovereignty, in which family law remains the
33
exclusive province of the States. As discussed above, State laws governing who can marry have always varied greatly. See supra Part I.A.2. The absence of any historical precedent for federal legislation to correct disparities in State marriage laws as State marriage policies have evolved throughout the past two centuries, demonstrates that this professed interest in maintaining uniformity is not just concocted but entirely insubstantial. B. The Interests Actually Stated by Congress, and Abandoned by the Government, Cannot Support DOMA Either.
The governments reliance on post hoc rationales to defend DOMA is understandable given the unsupportable reasons Congress actually articulated during DOMAs passage: encouraging responsible procreation and child-rearing, defending and nurturing the institution of traditional heterosexual marriage, preserv[ing] scarce government resources, and reflect[ing] and honor[ing] a collective moral judgment about human sexuality. See H. Rep. (Buseck Aff., Ex. D) at 12-18. As Defendants expressly or impliedly acknowledge, those justifications do not withstand any level of scrutiny. Because Defendants do not rely on them to defend the statute, they are not properly before the Court. Plaintiffs note briefly, however, why these interests are not rationally defensible. 1. DOMA Has Nothing to Do with Procreation and Child-Rearing.
Defendants expressly disavow Congresss stated purpose of encouraging responsible procreation and child-rearing, see H. Rep. (Buseck Aff., Ex. D) at 13, acknowledging the consensus among the leading medical, psychological, and social welfare organizations that children raised by gay and lesbian parents are just as likely to be well adjusted as those raised by heterosexuals. MTD at 19 n.10; see also SN-AF, Nos. 32-38; see Lamb Aff., 11-39. The government also concedes that procreation is not a rational basis on which to exclude only samesex couples from federal recognition, given that the ability to procreate is not a condition for
34
marital eligibility. MTD at 19 n.10 (quoting Lawrence, 539 U.S. at 605 (Scalia, J., dissenting)). These concessions are appropriate. First, because procreative decisions are quintessential
matters of individual liberty, this Court should approach with caution any attempt to justify exclusionary policies under the banner of promoting a particular method of procreation. Cf. Eisenstadt, 405 U.S. at 453 (it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (defending marital privacy against the State of Connecticuts attempt to promote procreation through banning contraceptives). Moreover, in this context, such an interest makes no sense as a justification for federal non-recognition of marriages between same-sex couples. Massachusetts has recognized that denying marriage rights to same-sex couples cannot be justified on the ground that it will encourage different-sex couples to marry and then procreate. See Goodridge v. Dept of Public Health, 798 N.E.2d 941, 963 (Mass. 2003). That conclusion is unassailable as a logical and factual matter. It is equally nonsensical to suppose that denying federal recognition to Plaintiffs marriages will encourage heterosexuals to marry and procreate. Cf. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 622 (1985) (law fails rational basis review where it is not written to require any connection between the [the classification] and [the asserted government interest]). At bottom, denying federal recognition will not make children of opposite-sex marriages more secure but merely serves to prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure accorded equal recognition under federal law. Goodridge, 798 N.E. 2d at 964; see also SN-AF, Nos. 9-11 (children of married couples of the same sex would benefit if their parents marriage were recognized by the federal government). That is not rational.
35
2.
DOMA Cannot Be Justified as Preserving Traditional Marriage.
Equally incoherent is the argument that DOMA somehow serves the goal of defending and nurturing the institution of traditional, heterosexual marriage. H. Rep. (Buseck Aff., Ex. D) at 12. This platitude is so vague as to be meaningless, but suggests either (1) that Congress simply wanted to maintain the existing exclusion of same-sex couples from marriage rights, or (2) that Congress was worried that marriage would become less desirable and valuable to different-sex couples unless same-sex couples were excluded. The first formulation is invalid on its face; the second bears no rational relationship to what DOMA actually does. At the outset, simply preserving the exclusion of same-sex couples from marital benefits because they have traditionally been excluded in the past is not a constitutionally cognizable interest. As the Supreme Court cautioned in Romer, discriminatory classifications must serve some independent and legitimate legislative end. 517 U.S. at 633. Simply asserting a desire to maintain the status quo in 1996, when same-sex couples were excluded from marriage, does nothing but tautologically circle back to the challenged classification without justifying it. Even if preserving traditional marriage could be called an interest, it would not be a valid federal interest. There are a number of valid federal policies advanced through the many federal laws and programs that the federal government bases on marriage, but the desire to regulate family law in accordance with Congresss own preferences and contrary to the laws of the States is not among them. As demonstrated in Part I.A.1 supra, regulation of marriage has long been regarded as a virtually exclusive province of the States. Sosna v. Iowa, 419 U.S. at 404. A desire to countermand a State family law policy with which Congress disagrees without anything more is neither properly cognizable by the federal government, nor relevant to interests it has the authority to implement. Garrett, 531 U.S. at 366 (quoting Cleburne, 473 U.S. at 441). If the federal government lacks the power in our federal system to 36
establish marital eligibility criteria directly, then, ipso facto, Congresss wish to make its own family law indirectly (in the absence of some other interest properly cognizable under Article I) cannot form a valid or legitimate basis for equal protection purposes. See id.; Cleburne, 473 U.S. at 448; Plyler, 457 U.S. at 225; see also Mow Sun Wong, 426 U.S. at 114-15. The second formulation of the traditional marriage justification preserving the value and desirability of marriage to heterosexual couples lacks any reasonable connection to what DOMA actually does. Not only is there no reason to believe that excluding same-sex couples from marital rights will have any effect on opposite-sex marriages, but DOMA is a step even further removed. It does not place any limitations on who can marry, it merely penalizes samesex couples that have already married. There is even less reason to believe that discriminating against such couples will cause more heterosexual couples to marry or cause their marriages to be more secure. The traditional marriage justification is thus not narrow enough in scope and grounded in sufficient factual context to ascertain some relation between the classification and the purpose it serve[s]. Romer, 517 U.S. at 632-33. 3. DOMA Undermines Rather than Protects State Sovereignty.
Although Congress also declared that the statute advanced the governments interest in protecting state sovereignty, that interest is inapposite here. See H. Rep. (Buseck Aff., Ex. D) at 16. That purported interest applies to a separate provision of the statute, Section 2, which deals with State recognition of marriages between same-sex couples performed in other States and is not implicated in this case. See 28 U.S.C. 1738C. Indeed, by breaking with the long tradition of giving federal recognition to State-recognized marriages, Section 3 undermines rather than supports State sovereignty. The Commonwealth of Massachusetts has in fact sued the government in a related case pending before this Court for, inter alia, usurping its Tenth Amendment authority to define marriage in Massachusetts and exceeding the scope of 37
Congresss Article I powers. See Commonwealth of Mass. v. U.S. Dept of Health and Human Servs., No. 1:09-cv-11156-JLT, Compl. at 2. 4. DOMA Does Not Conserv[e] Scarce Resources, and Conserving Resources Is Not a Justification for Denying Rights Indiscriminately and Inequitably.
Nor can DOMA be supported by any interest in conserving scarce resources. See H. Rep. (Buseck Aff., Ex. D) at 18 (noting that Congress had not undertaken an exhaustive examination of financial protections related to marriage, but nonetheless asserting that [t]o deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose.). DOMA is utterly disconnected from any goal of resource preservation. In fact, in 2004, the Congressional Budget Office concluded that federal recognition of marriages of same-sex couples by all fifty States, would result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1 (Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, January 21, 2004) (In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budgets bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBOs usual estimating period).). So DOMA costs money rather than saves it. DOMA also is not rationally related to the purported interest in resource conservation. It is at once too narrow and too broad, Romer, 517 U.S. at 633, sweeping in nonpecuniary and pecuniary federal benefits alike. See n.3 supra. As the House rejected a proposed amendment to DOMA that would have required a budgetary analysis by the General Accounting Office, see 142 CONG. REC. H7503-05 (daily ed. July 12 1996), financial considerations plainly were not an actual consideration in the passage of the Act. 38
Even if Congress actually believed it could save money by discriminating against samesex couples, such an interest would not be a legitimate justification. Any denial of benefits to any group will always save resources, so the government must do more than state a desire to cut costs; it must justify why it chose a particular group to bear the burdens of cost-cutting, and must do more than justify its classification with a concise expression of an intent to discriminate. Plyler, 457 U.S. at 227; see also id. at 229 (cost-cutting could not justify denying free public education to children of undocumented immigrants where in terms of educational cost and need, undocumented children are basically indistinguishable from legally resident alien children); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) ([a state] must do more than show that denying welfare benefits to new residents saves money), overruled in part on other grounds, Edelmann v. Jordan, 415 U.S. 651 (1974). Here there is no reason to justify cutting costs on the backs of Plaintiffs, which amounts to no more than the indiscriminate imposition of inequalities without rational basis, Romer, 517 U.S. at 633 (citations omitted), and fails to find some footing in the realities of the subject addressed by the legislation, Heller, 509 U.S. at 321. 5. Expressing Moral Disapproval of Homosexuality Is Not a Valid Interest.
DOMA makes sense only as an attempt to express disapproval of same-sex couples. In fact, Congress said as much, namely that DOMA was to reflect and honor a collective moral judgment about human sexuality that entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality. H. Rep. (Buseck Aff., Ex. D) at 15-16. This interest can be readily discarded as inconsistent with equal protection law. Discrimination for its own sake, based on bare disapproval for a particular group of citizens, is not a legitimate purpose on which a classification can be based: [I]f the
constitutional conception of equal protection of the laws means anything, it must at the very 39
least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate interest. Moreno, 413 U.S. at 534. Mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable . . . , are not permissible bases for governmental discrimination. Cleburne, 473 U.S. at 448. The Supreme Court has already applied these principles to invalidate other laws predicated on moral disapproval of homosexuality. Lawrence v. Texas explicitly repudiated the notion that the government may uniquely disadvantage gays and lesbians because of moral disapproval for same-sex intimate conduct. See 539 U.S. at 577. The majority quoted and adopted Justice Stevens dissent from Bowers v. Hardwick as the controlling analysis: [T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting that practice. Id. (citation omitted). Justice OConnor elaborated in her concurrence: Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Id. at 583 (OConnor, J., concurring) (quoting Romer, 517 U.S. at 633). In short, there is no morality exception to the equal protection of the laws, whether applicable to gays and lesbians or to anyone else. Otherwise invidious classifications do not become constitutional simply because they further some notion of morality.17 Such claims
17
Classifications motivated by animus are typically formulated as expressions of moral disapproval. For example, laws against interracial relationships and women working outside the home were both defended on religious and moral grounds. See Loving, 388 U.S. at 3 (trial judge, who sentenced couple to 25 years for interracial marriage, based decision on Gods separation of the races); Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., joined by Field and Swayne, JJ., concurring) (upholding refusal to admit women to practice law on basis of divine ordinance). The moral basis for such restrictions has since been recognized as illegitimate. See United States v. Virginia, 518 U.S. at 550; Palmore v. Sidoti, 466 U.S. 429, 431-32 (1984). This is not to say that moral views are per se impermissible as a basis for legislation but rather 40
amount to saying that the animus that motivated a law also serves as its justification. That does not work as a constitutional matter. Here, the sovereign empowered to decide family law matters involving Plaintiffs, Massachusetts, has already determined that Plaintiffs are eligible to enter into lawful marriages. Congresss desire to express its moral disapproval of Massachusettss policy cannot justify imposing legal disadvantages on Plaintiffs and burdens on their family relationships. See Lofton, 377 F.3d at 1279-1282 (Birch, J., specially concurring in denial of rehearing en banc) (when all the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. And animus alone cannot constitute a legitimate government interest.). IV. IN THE ALTERNATIVE, DOMA SHOULD BE INTERPRETED SO AS NOT TO REACH THE FEHB STATUTE. DOMA is unconstitutional as applied to Plaintiffs for the reasons articulated. However, DOMA should not be read to reach some of the Plaintiffs in the first place. OPM denied Plaintiffs Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald and Dean Hara (the FEHB Plaintiffs) enrollment in the federal health insurance program citing DOMA.18 See Amended Complaint, 419, 431, 454. Defendants contend that the FEHB Plaintiffs are not spouse[s] due to DOMA, and therefore cannot be member[s] of the family pursuant to 5 U.S.C. 8901(5). MTD at 20-21. This reading of the statute is mistaken. Although the definition of member of family in the FEHB statute contains an enumeration of covered individuals, both the House and Senate Reports specifically note that the phrase is defined to include the enumerated individuals. FEHB H. Rep. at 6, 1959
that moral disapproval, standing alone, cannot function as a justification for imposing disadvantages on a class of persons. See Moreno, 413 U.S. at 534-35; Romer 517 U.S. at 634. Nancy Gill and Marcelle Letourneau also challenge OPMs denial of enrollment for vision insurance under FEDVIP, 5 U.S.C. 8981-8992. The analysis in the text applies equally to the FEDVIP statute. 41
18
U.S.C.C.A.N. at 2919; S. Report 86-468 (July 2, 1959) (FEHB Sen. Rep.) at 20. Defendants resort to the statutory interpretation maxim of expressio unius est exclusio alterius to exclude married same-sex spouses, MTD at 20-21, implicitly acknowledges that the scope of coverage under the FEHB statute is ambiguous. See, e.g., United States v. Councilman, 418 F.3d 67, 7374 (1st Cir. 2005) (en banc) (reliance on the canon confirms that the text of the statute is ambiguous . . .). Given this concession, it is appropriate to consider other indicators of
legislative intent. Id. at 74 (maxim is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent); Hewlett-Packard Co. v Berg, 61 F.3d 101, 106 (1st Cir. 1995) (canon is an aid to construction and not an inflexible rule); Mass. Trustees of Eastern Gas & Fuel Assoc. v. U.S., 312 F.2d 214, 220 (1st Cir. 1963) (canon is a guide to construction, not a positive command). The FEHB statute as a whole and the legislative circumstances as a whole, id. at 220, demonstrate a clear congressional intent to: (1) provide insurance coverage essential to protect wage-earners and their families; and (2) close the gap and improve the competitive position of the government vis--vis private enterprise in the recruitment and retention of competent civilian personnel. FEHB H. Rep. at 1-2; 1959 U.S.C.C.A.N. at 2914-2915. See also FEHB S. Rep. at 3 (guiding principles include embrac[ing] as many Federal employees as feasible, provid[ing] coverage for members of an employees immediate family, and attracting and retaining the services of competent personnel). Beyond these broad legislative goals, the FEHB statute itself repeatedly focuses on the extension of coverage to family members. See, e.g., 5 U.S.C. 8903(3); 8905(a); 8905(b)(2); 8905(e); 8907(b). And, as mentioned supra, both the House and Senate Reports specifically note that the phrase is defined to include the
42
enumerated individuals. FEHB H. Rep. at 6; FEHB S. Rep. at 20.19 These indicators of legislative intent are consistent with the extension of FEHB eligibility to family members beyond those specifically enumerated in 5 U.S.C. 8901(5). The doctrine of constitutional avoidance counsels that between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative. United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007); see also, e.g. Clark v. Martinez, 543 U.S. 371, 381-382, 385 (2005) (canon is a means of choosing between two possible constructions of a statute). For the reasons detailed supra, reading the FEHB statute to exclude married same-sex spouses raises a substantial constitutional question. Id. at 70-71. The Court therefore should hold that DOMA does not preclude the FEHB Plaintiffs eligibility under the FEHB statute. V. EACH PLAINTIFF HAS STANDING. Defendants do not dispute that each Plaintiff has standing. However, they contend that one Plaintiff couple and one Plaintiff widower partially lack standing with respect to particular claims. The contention as to the Plaintiff couple is moot; in the case of the Plaintiff widower it is wrong. A. Defendants Partial Challenge to Gill and Letourneaus Standing is Moot.
Defendants objections to the standing of Plaintiffs Gill and Letourneau are moot. Defendants complain that Gill and Letourneau do not satisfy the causation requirement with
The Defendants seek to bolster their position by pointing to a 1984 Act of Congress that principally addressed the status of former spouses vis--vis federal employee annuities and, secondarily, added provisions to the FEHB statute to allow former spouses to enroll. See MTD at 21. However, there is a fundamental difference between spouses and surviving spouses, like the Plaintiffs here, and former spouses. While the legislative history suggests a clear intent to extend coverage to employees and their immediate families (which includes the Plaintiffs), it is not at all clear that former spouses continue within the meaning of an employees immediate family. 43
19
respect to their claim against the Office of Personnel Management (OPM) regarding Gills flexible spending account. See MTD at 25-26. Gill and Letourneau, however, voluntarily dismissed OPM as a Defendant with respect to this claim while preserving it as to the Postal Service and Postmaster General. See October 14, 2009 Notice of Dismissal, in Part, by Plaintiffs Nancy Gill and Marcelle Letourneau, Docket No. 24. Defendants have since agreed that with the claim against OPM withdrawn, Gill and Letourneau have standing to plead, and have pleaded, a claim regarding Gills flexible spending account against the Post Office and Postmaster General. See Buseck Aff., Ex. E. B. Plaintiff Hara Has Standing to Pursue his Claim for Federal Health Insurance Benefits.
Finally, Plaintiff Dean Hara has standing to challenge OPMs refusal to enroll him in the federal health insurance program as the surviving spouse of a federal employee.20 Defendants argue as follows: A surviving spouse can enroll in the federal health insurance program only if he or she is eligible to receive a survivor annuity under federal retirement laws, and eligibility for a survivor annuity is a matter determined by OPM and then subject to exclusive judicial review in the U.S. Court of Appeals for the Federal Circuit. See MTD at 22. As for Hara, he has an action pending, but stayed, in the Federal Circuit concerning his entitlement to a survivor annuity. Therefore, Defendants argue, [u]ntil that court determines that Mr. Hara is an
annuitant, he cannot be eligible for enrollment in the FEHB. MTD at 25. Plaintiff Hara has no dispute with the Defendants first two premises but submits that their conclusion is wrong as a matter of law for two reasons. First, and most important, the government has abandoned any argument that the fact that Hara is not currently an annuitant is a basis for denying him federal health insurance benefits. In
20
Defendants do not contest Haras standing to sue regarding the denial of the Social Security lump-sum death benefit. 44
its final decision denying Hara enrollment in a federal health benefit plan, OPM relied solely on a different ground, i.e., because Mr. Studds was not enrolled in a FEHBP family plan at the time of his death, you are not eligible to enroll for health benefits coverage under his health benefit plan as a survivor annuitant. Hara Aff., 21 Ex. B (June 18, 2009 letter from OPM to Dean Hara) (emphasis added). In its original denial letter of April 6, 2009, OPM had included a second reason for denial, i.e., you must have been eligible to receive a survivor annuity. But after a request for reconsideration, OPMs final denial letter deleted this rationale for denying enrollment. It follows that the government may not now argue that Hara has to succeed in obtaining an annuity before he can obtain health insurance benefits. It has been well settled for at least 60 years that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. Chenery, 332 U.S. at 196; see Fed. Trade Commn v. Sperry & Hutchinson Co., 405 U.S. 233, 246 (1972) (The difficulty with the Commissions position is that we must look to its opinion, not to the arguments of its counsel, for the underpinnings of its order); Kurzon v. U.S. Postal Serv., 539 F.2d 788, 792-93 (1st Cir. 1976) (applying Chenery and Sperry & Hutchinson); see also Albathani v. INS, 318 F.3d 365, 378 (1st Cir. 2003) (In functional terms, if the BIA does not independently state a correct ground for affirmance in a case in which the reasoning proffered by the IJ is faulty, the BIA risks reversal on appeal). OPMs decision to deny health insurance enrollment to Hara thus must stand or fall solely on whether the denial was proper because Congressman Studds was not enrolled in a family plan at the time of his death. That is a question strictly under the FEHB statute and
45
squarely within this Courts jurisdiction.21 For this reason alone, Plaintiff Hara has standing to assert his health insurance claim in this Court. Second, even if OPM had not abandoned annuitant status as a basis for denying health insurance benefits, that would not affect Haras standing to pursue this health insurance claim. The Merit Systems Protection Board (MSPB) has already ruled that Hara would meet all the statutory and regulatory requirements for a CSRS annuity, but for DOMA, and the Government never appealed from that MSPB ruling, which is now final.22 The only appeal pending in the Federal Circuit is Haras, in which the sole question presented is the constitutionality of DOMA. Specifically, the MSPB ruling established that: (1) Congressman Studds intended for Hara to have the benefit of a spousal annuity if that were legally possible; (2) Hara was not legally eligible for a survivor annuity because, by virtue of DOMA, 1 U.S.C. 7, Hara and Studds did not have a marriage under federal law; (3) as Hara and Studds were not married and not spouses under federal law, there was no election requirement that Studds failed to satisfy; (4) even if an election was required, that election would be deemed to have been timely made by Studds and OPM was estopped to rely on any asserted failure to elect; and (5) it was beyond the purview of the MSPB to determine the constitutionality of 1 U.S.C. 7. Hara Aff. 20 Ex. A (Judge William Boulden, Initial Decision, December 18, 2008, at 5, 10-14, 15-16, 17This preliminary enrollment question, moreover, has already been resolved in Haras favor by the Initial Decision in his case at the MSPB. Specifically, OPM asserted that Congressman Studds had failed to elect Hara as a survivor annuitant. See Hara Aff. 19. However, the MSPB decision determined that: (1) Congressman Studds intended for Hara to have access to a survivor annuity (and health insurance); and (2) since Studds and Hara were not married and not spouses under federal law, there was no election requirement Studds could have satisfied prior to his death. Id. 20, Ex. A (Judge William Boulden, Initial Decision, December 18, 2008) at 10-11, 16, 18-19. OPM should thus be barred from enforcing the same election requirement against Hara under the FEHB statute. Id. at pp. 18-19.
22 21
OPMs Director also did not seek reconsideration of the decision at the MSPB, a prerequisite to OPMs ability to appeal to the Federal Circuit. See 5 U.S.C. 7703(d); 5 C.F.R. 1201.119; Lachance v. Devall, 178 F.3d 1246, 1249 n.2 (Fed. Cir. 1999). 46
19). In sum, the MSPB has conclusively determined that Hara is statutorily eligible for a survivor annuity; and he is being denied an annuity solely because of DOMA. It follows that even if the government had not abandoned the annuity issue as a basis for denying health insurance benefits, it would make no sense to bar Hara from litigating his claim for insurance benefits here. At this point, Haras annuity claim in the Federal Circuit (which has been stayed while this action is pending) and his health insurance claim in this Court both turn on the same question the constitutionality of DOMA. If that question is finally resolved in his favor, he will be entitled to an annuity and to federal health insurance benefits. There is no basis for claiming that this constitutional issue, for this single Plaintiff, has to be addressed in the first instance in the Federal Circuit. For these reasons, Plaintiff Hara has standing to assert his claim relating to enrollment in the federal health insurance program as a surviving spouse. CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, Plaintiffs respectfully ask that Defendants Motion to Dismiss be denied, and that Plaintiffs Motion for Summary Judgment be granted. There is no genuine dispute of fact. Section 3 of DOMA, as applied to Plaintiffs, plainly fails to pass constitutional muster under any level of equal protection scrutiny.
Respectfully submitted,
/s/ Gary D. Buseck
47
GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck, BBO # 067540 gbuseck@glad.org Mary L. Bonauto, BBO #549967 mbonauto@glad.org Nima R. Eshghi, BBO # 633716 neshshi@glad.org Janson Wu, BBO #609949 jwu@glad.org Samuel P. Bickett (BBO# pending) sbickett@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 Telephone (617) 426-1350 Facsimile (617) 426-3594 Attorneys for Plaintiffs
FOLEY HOAG LLP Claire Laporte, BBO #554979 claporte@foleyhoag.com Vickie L. Henry, BBO #632367 vhenry@foleyhoag.com Matthew Miller, BBO #655544 mmiller@foleyhoag.com Amy Senier, BBO # 672912 asenier@foleyhoag.com Seaport World Trade Center West 155 Seaport Blvd. Boston, MA 02210 Telephone (617) 832-1000 Facsimile (617) 832-7000 Attorneys for Plaintiffs
JENNER & BLOCK LLP Paul M. Smith (pro hac vice) psmith@jenner.com Luke C. Platzer (of counsel) lplatzer@jenner.com Daniel I. Weiner (of counsel) dweiner@jenner.com Anna M. Baldwin (of counsel) abaldwin@jenner.com 1099 New York Ave, NW, Suite 900 Washington, DC 20001 Telephone (202) 639-6060 Facsimile (202) 661-4948 Attorneys for Plaintiffs
SULLIVAN & WORCESTER LLP David J. Nagle, BBO # 638385 dnagle@sandw.com Richard L. Jones, BBO # 631273 rjones@sandw.com One Post Office Square Boston, MA 02109 Telephone (617) 338-2800 Facsimile (617) 338-2880 Attorneys for Plaintiffs Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary BoweShulman, and Dorene Bowe-Shulman
Dated: November 17th, 2009 Certificate of Service I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on November 17, 2009.
/s/ Gary D. Buseck Gary D. Buseck
48
Case3:10-cv-00257-JSW Document153-2
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) ) ) ) )
NANCY GILL & MARCELLE LETOURNEAU, et al. Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, et al. Defendants.
No. 1:09-cv-10309 JLT
PLAINTIFFS REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck Mary L. Bonauto Nima R. Eshghi Janson Wu Samuel P. Bickett 30 Winter Street, Suite 800 Boston, MA 02108 Telephone (617) 426-1350 Facsimile (617) 426-3594 Attorneys for Plaintiffs FOLEY HOAG LLP Claire Laporte Vickie L. Henry Matthew Miller Amy Senier Seaport World Trade Center West 155 Seaport Blvd. Boston, MA 02210 Telephone (617) 832-1000 Facsimile (617) 832-7000 Attorneys for Plaintiffs SULLIVAN & WORCESTER LLP David J. Nagle Richard L. Jones One Post Office Square Boston, MA 02109 Telephone (617) 338-2873 Facsimile (617) 338-2880 Attorneys for Plaintiffs Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary BoweShulman, and Dorene Bowe-Shulman
JENNER & BLOCK LLP Paul M. Smith Luke C. Platzer Daniel I. Weiner Anna M. Baldwin 1099 New York Ave, NW, Suite 900 Washington, DC 20001 Telephone (202) 639-6060 Facsimile (202) 661-4948 Attorneys for Plaintiffs
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 ARGUMENT...................................................................................................................................2 I. PLAINTIFFS EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED SCRUTINY..........................................................................................................................2 A. B. C. II. DOMAs Departure from Principles of Federalism Merits Close Review..............2 DOMA Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships. ................................................................................6 Discrimination Based on Sexual Orientation Merits Heightened Scrutiny. ............9
DOMA LACKS A RATIONAL RELATIONSHIP TO ANY LEGITIMATE FEDERAL INTEREST......................................................................................................11 A. B. C. D. There Is No Interest in Preserving the Status Quo for the Sake of Preserving the Status Quo......................................................................................12 DOMAs Discrimination Among Married Couples Cannot Be Justified Based on National Consistency..........................................................................14 State-by-State Debates Regarding Marriage for Same-Sex Couples Are Irrelevant to Federal Treatment of Married Same-Sex Couples............................17 DOMA Lacks Any Legitimate Purpose.................................................................18
CONCLUSION..............................................................................................................................19
TABLE OF AUTHORITIES Page(s) CASES Aguilar v. United States Immigration & Customs Enforcement Div. of the Dept of Homeland Sec., 510 F.3d 1 (1st Cir. 2007)..........................................................................................................7 Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959) ..................................................................................................................5 Andrew S. ex rel. Margaret S. v. School Comm. Of Town of Greenfield, 59 F. Supp. 2d 237 (D. Mass. 1999) .......................................................................................10 Ankenbrandt v. Richards, 504 U.S. 689 (1992) ..................................................................................................................3 Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986)...................................................................................................................6 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)......................................................................................................5, 16, 17 Beauchamp v. Murphy, 37 F.3d 700 (1st Cir. 1994)......................................................................................................10 Bowen v. Gilliard, 483 U.S. 587 (1987)...................................................................................................................8 Califano v. Jobst, 434 U.S. 47 (1977).....................................................................................................................8 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).......................................................................................................5, 12, 15 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)....................................................................................2, 6, 9, 10, 11 Egelhoff v. Egelhoff, 532 U.S. 141 (2001)...................................................................................................................4 Frontiero v. Richardson, 411 U.S. 677 (1973)...................................................................................................................9
ii
Gately v. Massachusetts, 2 F.3d 1221 (1st Cir. 1996)......................................................................................................10 Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)...................................................................................................................6 Heller v. Doe, 509 U.S. 312 (1993).................................................................................................................17 Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985)...................................................................................................................5 Kerrigan v. Commr of Public Health, 957 A.2d 407 (Conn. 2008) .......................................................................................................9 Lawrence v. Texas, 539 U.S. 558 (2003)...................................................................................................................9 Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928).....................................................................................................................6 Marin TV Servs. Partners, Ltd. v. FCC, 936 F.2d 1304 (D.C. Cir. 1991) ...............................................................................................19 Meister v. Moore, 96 U.S. 76 (1877).....................................................................................................................15 Moore v. City of East Cleveland, 431 U.S. 494 (1977)...................................................................................................................7 Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185 (1937).................................................................................................................19 National Parks Conserv. Assn. v. Norton, 324 F.3d 1229 (11th Cir. 2003) ...............................................................................................13 New York v. United States, 505 U.S. 144 (1992)...................................................................................................................5 Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009)...............................................................................................................4 Osaka Shosen Kaisha Line v. United States, 300 U.S. 98 (1937)...................................................................................................................10 Piacentini v. Levangie, 998 F. Supp. 86 (D. Mass. 1998) .............................................................................................10
iii
Plyler v. Doe, 457 U.S. 202 (1982)...................................................................................................................5 Restucci v. Clarke, No. 09-10584-WGY, --- F. Supp. 2d ---, 2009 WL 3818599 (D. Mass. Nov. 16, 2009)........10 Roberts v. United States Jaycees, 468 U.S. 609 (1984)...................................................................................................................6 Roche v. Town of Wareham, 24 F. Supp. 2d 146 (D. Mass. 1998) ........................................................................................10 Rodriguez v. Secretary of Health, Educ. & Welfare, 644 F.2d 918 (1st Cir. 1981)....................................................................................................10 Romer v. Evans, 517 U.S. 620 (1996)......................................................................................................... passim Rossiter v. Potter, 357 F.3d 26 (1st Cir. 2004)......................................................................................................11 Sherrer v. Sherrer, 334 U.S. 343 (1948).................................................................................................................15 Stanley v. Illinois, 405 U.S. 645 (1972)...................................................................................................................6 Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007) ...............................................................................................13 Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574 (Fed. Cir. 1995)..................................................................................................19 Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622 (1994)...................................................................................................................6 U.S. Dept of Agriculture v. Moreno, 413 U.S. 528 (1973).................................................................................................................12 United States v. Jones, 231 F.3d 508 (9th Cir. 2000) .....................................................................................................4 United States v. Klinzing, 315 F.3d 803 (7th Cir. 2003) .....................................................................................................4 United States v. Lewko, 269 F.3d 64 (1st Cir. 2001)........................................................................................................4
iv
United States v. Meade, 175 F.3d 215 (1st Cir. 1999)......................................................................................................4 Waste Mgmt. Inc. v. U.S. EPA, 669 F. Supp. 536 (D.D.C. 1987) ..............................................................................................13 Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988).....................................................................................................19 STATUTES 29 U.S.C. 2612 (a)(1)(A)-(D) .......................................................................................................8 Defense of Marriage Act, Pub. L. No. 104-199 3, 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA) .................................................................................................. passim OTHER AUTHORITIES FED. R. EVID. 501.............................................................................................................................8 Michael Grossberg, Governing the Hearth, Law and the Family in Nineteenth Century America (1985) ........................................................................................................................15 Nancy Cott, Public Vows (2000) ...................................................................................................15 Edward Stein, Past and Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611 (2004) ...............................................................15
INTRODUCTION Defendants Opposition to Summary Judgment begins with the admirable concession that Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), is discriminatory and should be repealed. Defendants Reply in Support of Defendants Motion to Dismiss and Opposition to Plaintiffs Motion for Summary Judgment at 1 (SJ Opp.) (Doc. 55). Defendants then go on to try to defend that discrimination as serving legitimate federal interests. Those arguments, unsurprisingly, are utterly unpersuasive. Defendants newly minted rationales for DOMA simply cannot justify the inequality the law imposes. Indeed, the Court need not even reach them. Heightened scrutiny requires
consideration of the actual reasons for a law, not post hoc rationalizations advanced by counsel. And Plaintiffs equal protection claims require heightened scrutiny. First, DOMA ruptured a two-hundred year understanding that marital status determinations are the sole province of the States. While Defendants complain that applying heightened equal protection scrutiny due to federalism concerns would be removed from existing constitutional jurisprudence, SJ Opp. at 9, the unique and historically anomalous nature of the statute raises concerns about whether it serves any legitimate federal purpose, and thus warrants heightened scrutiny. Second, by erasing Plaintiffs marriages for all federal purposes, DOMA disparately burdens Plaintiffs fundamental liberty interest in the integrity of their marriages and families. While Defendants characterize this burden as merely indirect, they miss the forest for the trees, focusing on individual benefits programs from which Plaintiffs are excluded while disregarding the significance and cumulative effect of legally erasing Plaintiffs family relationships from all federal recognition. And third, DOMA flatly discriminates against gay and lesbian people as a class. The
uncontested record amply demonstrates that gays and lesbians, as a class, meet all the criteria for heightened scrutiny: they have experienced a history of purposeful discrimination and have 1
suffered unique disabilities unrelated to their actual character or abilities. Defendants attempt to cut off this inquiry, based on one brief statement from the First Circuits decision in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), where the issue was not even before the court of appeals, should be rejected. Even if the Court were to apply rational basis scrutiny, and thus entertain the governments post hoc rationales, DOMA would still be an unconstitutional denial of equal protection of the laws. Attempting to conjure up legitimate federal interests that are served by DOMA, Defendants describe only what Congress was doing continuing the exclusion of samesex couples from federal marriage-based rights and benefits while States debated and changed their laws on the subject but never articulate why there was any valid federal interest in preserving this exclusion once States began permitting gay and lesbian couples to marry. Instead, they simply repeat platitudes such as preserving the status quo and consistency that are devoid of substantive content, are counter-factual, and do not in any event represent real or legitimate governmental interests. Although rational basis review is more permissive than
heightened forms of scrutiny, it requires the government to do more than merely describe a laws effects without explaining what purpose it serves. For all of these reasons, and based on the undisputed record before the Court, Plaintiffs Motion for Summary Judgment should be granted. ARGUMENT I. PLAINTIFFS EQUAL PROTECTION CLAIMS REQUIRE HEIGHTENED SCRUTINY. A. DOMAs Departure from Principles of Federalism Merits Close Review.
DOMA should be closely scrutinized because its creation of a federal family law marks an unprecedented departure from the federal-state balance that had previously governed domestic
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relations issues. See Plaintiffs Memorandum of Law in Opposition to Defendants Motion to Dismiss and in Support of Plaintiffs Motion for Summary Judgment at 12 (MSJ) (Doc. No. 28). Defendants respond that applying heightened review based on federalism concerns would be removed from existing constitutional jurisprudence, SJ Opp. at 9, and that DOMA in any event does not raise federalism concerns because its effects are confined to federal programs. Id. at 10. Defendants understate the extent to which Congress, through DOMA, leveraged the reach of the federal government to make its own family law at the expense of States traditional authority over domestic relations, and further misunderstand why this requires close review. Defendants do not dispute that it is within the States core power to issue declarations of status such as marriage, annulment, divorce, custody and paternity, Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring), and concede that prior to DOMA, the marital status of individuals under federal law . . . generally depended on marital status under state law. SJ Opp. at 12. Yet they protest that DOMA did not formally displace state law with respect to who may marry because it ostensibly applies only to federal programs. Id. That argument misses the mark. DOMA strikes at the heart of State prerogatives by advancing a competing definition of marriage, promulgated nationally, that supplants the States in establishing the meaning and contours of marriage. DOMA thereby deprives Plaintiffs of a key element of marriage the ability to hold themselves out to the world as married by nullifying, overriding, and disregarding the Plaintiffs marriages for all federal purposes. Federalizing a definition of marriage for all purposes necessarily involves the federal
government in the business of marital status determinations, and disrespects the State sovereigns historical exclusivity and core power to make that determination.1 The absence of any recognized federal interest in regulating marital status must inform the level of review.2 Defendants attempt to justify DOMA by arguing that it falls within the scope of Congresss enumerated powers because its effects are nominally confined to federal laws and programs. See SJ Opp. at 9-10. But that is irrelevant. Plaintiffs challenge is under the Fifth Amendment, not the Tenth.3 The issue is not whether Congress had the authority over
The cases relied upon by Defendants are not to the contrary. SJ Opp. at 11. United States v. Meade, 175 F.3d 215, 225 (1st Cir. 1999), upheld a federal gun possession law applicable to persons subject to state anti-harassment orders or convicted of a crime of domestic violence against a Tenth Amendment challenge. The federal action relied on state law predicates, and [n]othing in the state court proceeding changes on account of, or is affected in any way by, the operation of the federal law. Id; see also United States v. Jones, 231 F.3d 508, 515 (9th Cir. 2000) (rejecting Tenth Amendment challenge where federal law simply accept[s] the validity of the . . . restraining orders that have been issued under state law"). Both United States v. Lewko, 269 F.3d 64 (1st Cir. 2001), and United States v. Klinzing, 315 F.3d 803 (7th Cir. 2003), upheld federal interstate enforcement of child support obligations, the latter without discussion of federalism. Klinzing, 315 F.3d at 808, 809. Lewko rejected federalism concerns because the federal law had [n]either the purpose or effect of establishing a national, uniform family law, but instead merely protect[ed] the integrity of state court judgments. Lewko, 269 F.3d at 69. Establishing a national, uniform family law, of course, is exactly the purpose and effect of DOMA, as Defendants themselves admit. See SJ Opp. at 15 (arguing that purpose of DOMA is that it preserve[s] consistency regarding marital status for purposes of federal law.). The presumption against federal preemption of state domestic relations law also speaks to judicial skepticism of federal interests in this area. See Egelhoff v. Egelhoff, 532 U.S. 141, 151 (2001). In addition to the domestic relations area, the Court also closely scrutinizes federal laws that touch upon other areas of traditional state authority, such as election procedures. See Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009) (federal measures intruding into such areas must be sufficiently related to problem being addressed); see also id. at 2520 (Thomas, J., concurring in part and dissenting in part) (such measures must be closely examined to ensure that its encroachment on state authority in this area is limited).
3 2
If Congress had exceeded the scope of its enumerated Article I powers, the result would not be heightened review it would simply be that the law was unconstitutional altogether. This is in fact the position of the Commonwealth of Massachusetts in a separate case. See Commonwealth of Massachusetts v. United States Department of Health and Human Services et al., No. 1:09-cv-11156-JLT. 4
the federal programs and laws affected by DOMA, but whether it had a legitimate federal interest in discriminating against gay and lesbian married couples. The equal protection guarantee requires the governments justification for disadvantaging a class of people be properly cognizable by the governmental body at issue, City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985), and relevant to interests the classifying body has the authority to implement. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting Cleburne, 473 U.S. at 441); see also Plyler v. Doe, 457 U.S. 202, 225 (1982). That is why the historically anomalous nature of DOMA and its radical departure from the history of the federal-state balance regarding the determination of marital status matter so much. The fact that DOMA created a federal marital status for the first time, and that it had to run roughshod over two centuries of federalist practice in order to do so, should raise serious questions whether a legitimately federal purpose truly animates the legislation. At the very least, it should temper the usual presumption of constitutionality. The maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action, and the Equal Protection Clause, among its other roles, operates to maintain this principle of federalism . . . . [and] as an instrument of federalism. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 532 (1959) (Brennan, J., concurring) (emphasis added), cited with approval for related point of law in Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 878 (1985).4 And at a minimum, as the Supreme Court made clear in Romer, the absence of precedent for a measure is itself instructive; [d]iscriminations of an unusual character
See generally New York v. United States, 505 U.S. 144, 181 (1992) ([T]he Constitution divides authority between federal and state governments for the protection of individuals. . . . [F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.) 5
especially suggest careful consideration to determine whether they are obnoxious to the constitutional [equal protection] provision. Romer v. Evans, 517 U.S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). Such consideration is required here. B. DOMA Disparately Burdens the Fundamental Interest in Maintaining Existing Family Relationships.
DOMA is also subject to heightened scrutiny because it disparately burdens the right to family integrity. Defendants acknowledge there is a fundamental right to family integrity. SJ. Opp. at 10. And they do not contest that when a classification subjects one group of people to a disparately high burden in exercising a fundamental right, the classification triggers heightened equal protection scrutiny irrespective of whether the persons disadvantaged constitute a suspect class. See SJ Opp. at 6-7; see also, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 672, (1966); Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 659-60 (1994); see also Cook v. Gates, 528 F.3d at 56 (explaining that heightened scrutiny applies when individuals protected liberty interests are infringed by the government). Nonetheless, Defendants argue that DOMA does not sufficiently burden the right to family integrity because it does not physically cast married couples of the same sex asunder. SJ Opp. at 10 (stating DOMA does not prevent married couples of the same sex from remain[ing] together, enjoy[ing] familial privacy, or rais[ing] children). This cramped understanding of the right to family integrity is unwarranted. Family relationships enjoy constitutional protection because they permit the ability independently to define ones identity that is central to any concept of liberty. Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). Laws that disparately burden the right to stake out and define such family relationships are subject to heightened scrutiny. See, e.g., Stanley v.
Illinois, 405 U.S. 645, 658 (1972) (statute declaring unwed fathers presumptively unfit to raise their own children violated equal protection clause, where married parents, divorced parents, and unmarried mothers were treated more favorably); Moore v. City of East Cleveland, 431 U.S. 494, 506 (1977) (zoning ordinance held unconstitutional where it required family members to live in certain narrowly defined family patterns). Heightened scrutiny is more than appropriate because DOMA, with its unprecedented sweep, erases Plaintiffs marital status wholesale, treating lawfully married same-sex couples as single persons for purposes of federal law. By promulgating an unprecedented federal marriage standard, DOMA renders one class of marriages into non-marriages, requires Plaintiffs to disavow their own marriages in every interaction with the federal government, slicing deeply into the family itself, Moore, 431 U.S. at 498, and thus stigmatizes Plaintiffs by calling into question the legitimacy, worth, and meaning of their marriages and their families. See Plaintiffs Separate Statement of Non-Adjudicative Facts, Nos. 15-16, 18, 20 (SN-AF) (Doc. No. 27). As a result, Plaintiffs are prevented from enjoying many of the benefits of marriage that constitute ordinary civic life in a free society and which lawfully married different-sex couples receive as a matter of course. Romer, 517 U.S. at 631. Heightened scrutiny is therefore proper because the disparate burden that DOMA imposes on Plaintiffs right to maintain their existing family relationships is not transitory in nature but is instead a permanent disability imposed purposefully and only on same-sex couples. See Aguilar v. United States Immigration &
Customs Enforcement Div. of the Dept of Homeland Sec., 510 F.3d 1, 23 (1st Cir. 2007). Given the breadth and severity of DOMAs burdens, Defendants citation of cases where heightened scrutiny was not applied because the challenged provision had only some indirect effect on a fundamental interest is completely inapposite. SJ Opp. at 8. There is nothing
indirect about DOMAs intentional erasure of Plaintiffs State-sanctioned marriages for all purposes under federal law. Congresss explicit purpose in passing DOMA was to burden and express opposition to Plaintiffs State-sanctioned marriages. See MSJ at 9-19 (discussing
Congresss stated purposes for DOMAs passage, including the goal of expressing moral disapproval of homosexuality). On the undisputed factual record before this Court, there is no question that the denial of federal recognition has concretely burdened the Plaintiffs relationships it has denied Plaintiffs access to a multitude of federal benefits, rights, and responsibilities, imposed additional financial costs, prevented spouses from staying home with children or retiring, and relegated Plaintiffs to second-class status by denying them much of the public and private validation, social recognition, respect, and support that accompany civil marriage. MSJ at 21.5 Heightened scrutiny is therefore required because DOMA has done exactly what it was intended to do it has disparately and substantially burdened Plaintiffs fundamental interest in their existing family relationships. See Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (holding that heightened scrutiny would be appropriate where government action has the design and direct effect of intrud[ing] on choices concerning family living arrangements); cf. Califano v. Jobst, 434 U.S. 47, 54 n.11 (1977).
For example, DOMA burdens Plaintiffs ability to care for their children as they see fit. Because same-sex spouses are denied coverage under the Federal Employees Health Benefits Program as a result of DOMA, Plaintiff Letourneau has had to remain in the workforce in order to maintain her own insurance coverage, rather than stay home with their children as she and her spouse, Plaintiff Gill, had originally planned. See SN-AF No. 11; see also 29 U.S.C. 2612 (a)(1)(A)-(D) (the unavailability of leave under Family Medical Leave Act could present Plaintiff couples with an untenable choice between working and caring for a seriously ill or injured spouse). And DOMA also affects other federal rights and benefits relevant to family integrity, such as marital privacy. See, e.g., FED. R. EVID. 501 (marital confidence and spousal privileges, in federal court, which same-sex married couples are denied by DOMA). The fact that nonpecuniary rights such as FMLA rights and the spousal privilege are not implicated in this case is beside the point. The security provided by such rights protects marital relationships before the occasion arises to invoke them. 8
C.
Discrimination Based on Sexual Orientation Merits Heightened Scrutiny.
It is uncontested for purposes of this motion that (1) gays and lesbians have experienced a history of discrimination; (2) sexual orientation is unrelated to the ability to contribute to society; (3) gays and lesbians are a minority and face significant obstacles to achieving protection from discrimination through the political process; and (4) sexual orientation is a defining characteristic of a persons identity. See MSJ at 24-26. Under traditional equal protection analysis, these four factors should require discrimination against gay and lesbian persons to be justified under a heightened scrutiny standard. Instead, Defendants claim that one brief statement from the First Circuits decision in Cook v. Gates forecloses heightened scrutiny for classifications based on sexual orientation. See SJ Opp. at 2-6 (citing 528 F.3d at 62 (homosexuals are not a suspect class.)). But the excerpt Defendants cite cannot bear the weight they ascribe to it. As an initial matter, Defendants ignore the Cook courts framing of the question it was answering. The Court held that the Supreme Courts rulings in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), did not mandate a finding that classifications based on sexual orientation necessitate other than rational basis review. 528 F.3d at 61. The fact that the First Circuit made this observation does not demonstrate that the Court intended to bar such an inquiry going forward, particularly on a different (and undisputed) record. Whether a classification merits heightened scrutiny is a fact-intensive inquiry necessitating an in-depth examination of the relevant groups history and objective attributes. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 684-88 (1973) (heightened scrutiny warranted for classifications based on sex); Kerrigan v. Commr of Public Health, 957 A.2d 407, 431-61 (Conn. 2008) (heightened scrutiny warranted for classifications based on sexual orientation). Defendants, recognizing that the First Circuit engaged in no such inquiry, maintain that other courts have considered and rejected arguments for heightened 9
scrutiny without alluding to the traditional factors. SJ Opp. at 5 n.4. But in no case cited by Defendants for support did the court actually resolve a claim for heightened scrutiny in this manner.6 There is, accordingly, scant basis to think that the First Circuit intended to
conclusively resolve such an important issue in the perfunctory manner that Defendants suggest. In fact, whether sexual orientation is a suspect or quasi-suspect classification was not even before the Court in Cook, as Defendants themselves tacitly admit. See SJ Opp. at 3, 5. Rather, the Cook court was called upon to consider only whether the district court should have applied the type of robust and realistic rational basis review that the Cook plaintiffs argued the Supreme Court applied in Romer. See Br. of Plaintiffs-Appellants, Cook v. Rumsfeld, Nos. 062313, 2381 (Nov. 14, 2006), at 31-35. Thus, the issue that Defendants claim Cook resolved was not even litigated. Where the parties fail to litigate an issue, a courts discussion of the issue in passing does not constitute a precedent to be followed in a different case to be decided on a different record. Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1996); cf. also Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 103 (1937) ([G]eneral expressions [in a See Beauchamp v. Murphy, 37 F.3d 700, 706 (1st Cir. 1994) (plaintiff alleged irrational classification between prison escapees and pretrial detainees or parole violators) (emphasis added); Rodriguez v. Sec. of Health, Educ. & Welfare, 644 F.2d 918, 920 n.2 (1st Cir. 1981) (plaintiff relied on cases holding that suspect class issue need not be reached because the classification is justified by no legitimate state interest, compelling or otherwise.) (citation omitted); cf. also Roche v. Town of Wareham, 24 F. Supp. 2d 146, 153 n.8 (D. Mass. 1998) (plaintiff invoked already-established protected federal constitutional class of those discriminated upon based on their ancestry); Restucci v. Clarke, No. 09-10584-WGY, --- F. Supp. 2d ---, 2009 WL 3818599 at *5 (D. Mass. Nov. 16, 2009) (dismissing prisoner claim due to lack of allegation that others similarly situated were treated differently; no indication prisoner argued for suspect classification); Piacentini v. Levangie, 998 F. Supp. 86, 91 (D. Mass. 1998) (rejecting argument that arrest due to plaintiffs parolee status was proof of animus sufficient to support a conspiracy claim under 42 U.S.C. 1985(3) with no indication plaintiff argued for suspect classification for equal protection purposes); Andrew S. ex rel. Margaret S. v. Sch. Comm. of Town of Greenfield, 59 F. Supp. 2d 237, 244-45 (D. Mass. 1999) (in assessing whether IDEA violation could form basis for section 1983 claim, observed that disabled persons have not been classified as a suspect class for purposes of resolving a section 1983 action; suspect class issue not before the court). 10
6
judicial opinion] are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.).7 In any event, the brief discussion in Cook on which Defendants rely is dicta not essential to the result reached in the case. Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir. 2004).
Defendants insistence to the contrary ignores Cooks basic holding, which was that the Court would not overrule Dont Ask, Dont Tell notwithstanding the fact that the policy was subject to heightened scrutiny for some purposes. See 528 F.3d at 60. Thus, a finding that the
classification in Cook was subject to heightened scrutiny on equal protection grounds for any reason would not have changed the ultimate result. In sum, the Court can and should determine whether classifications based on sexual orientation are suspect or quasi-suspect based on the record before it. That record, which Defendants do not contest, plainly warrants heightened scrutiny. II. DOMA LACKS A RATIONAL RELATIONSHIP TO ANY LEGITIMATE FEDERAL INTEREST. Although DOMAs discrimination between same-sex and different-sex married couples merits heightened scrutiny for the reasons stated, the question affects only the analysis, not the outcome: DOMA fails the rational basis standard just as much as it fails heightened scrutiny. Congress clearly stated contemporaneous reasons for enacting DOMA. Every one of those reasons is impermissible under todays equal protection jurisprudence, and the government has abandoned any defense of them here. See MSJ at 34-41; SJ Opp. at 12, 17 (Defendants One of the original Cook plaintiffs, James Pietrangelo, proceeded pro se in the First Circuit and called sexual orientation a suspect class twice in his brief. However, he did not actually develop an argument for any particular equal protection standard of review although he did consistently and repeatedly assert that the governments actions were variously irrational, arbitrary, an endorsement of blatant bigotry, and an expression of raw animus. 11
7
have expressly disavowed reliance on the purported interests set forth in DOMAs legislative history). The openness and clarity with which impermissible purposes were flaunted at the time of DOMAs enactment (up to and including outright hostility to gay and lesbian persons, see MSJ at 8-10 & nn.4-6) should, at the very least, raise the possibility that the post hoc rationales that governments counsel now advances for purposes of defending this litigation are a less-thancomplete description of the laws purposes. And as demonstrated below, none of the
governments litigation-driven positions hold water. The governments position boils down to nothing more than an assertion that, even though these were not the motivations of the actual Congress, a hypothetical Congress could have legitimately wanted to (1) prevent change for the sake of preventing change, (2) treat all gay and lesbian couples in the country consistently, irrespective of whether they were married or not, and (3) wait until the States finished debating marriage rights for same-sex couples before adopting a federal position. See SJ Opp. at 11-17. Rational basis review may be lenient, but it is not that lenient. Courts do not hesitate to strike down disadvantageous classifications, even when they target groups that do not receive heightened protection, that are drawn for irrational, arbitrary, or impermissible reasons. See, e.g., Romer, 517 U.S. at 635; City of Cleburne, 473 U.S. at 446-47; U.S. Dept of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Each of the post hoc justifications advanced by the
government is insubstantial, illegitimate, and/or disconnected from what DOMA actually does. Under those circumstances, DOMA fails even the rational basis test and cannot justify the discrimination imposed against Plaintiffs. A. There Is No Interest in Preserving the Status Quo for the Sake of Preserving the Status Quo.
Defendants rely chiefly on their contention that DOMA preserved the status quo as of 1996, when gay and lesbian couples could not marry and therefore were denied access to the
12
federal rights and benefits associated with marriage. SJ Opp. at 15. That argument goes nowhere. To begin with, preserving the status quo can be a legitimate means of serving some independent, legitimate government interest, but simply preventing change is not itself an independent government interest. Although Defendants cite a string of cases to support their contention that preserving the status quo is a legitimate government interest for equal protection purposes, they all rest on specific explanations of why preserving the status quo for a limited time served some independent, valid purpose.8 Here, the Defendants fail to show that the status quo DOMA preserved was one they had any interest in preserving. The only reason same-sex couples were denied federal marriagebased rights or benefits in 1996 was that they were not married. When States began marrying same-sex couples, that rationale ceased to exist. As Defendants frame it, Congress (anticipating this development) could preserve either the status quo of honoring State marriages for federal purposes or the status quo of gays and lesbians not receiving federal rights and benefits, and chose the latter. See SJ Opp. at 12. But that framing is fallacious. Congress in 1996 could not have chosen to continue to define marriage to exclude same-sex couples, SJ Opp. at 12,
See Natl Parks Conserv. Assn. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by agreeing to defined extension of time to allow leaseholders of stilted structures on national park land to continue to live in the structures served legitimate government interest in seeing that the structures were maintained pending the development of a planning process for the land); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (a government employer may wish to maintain the status quo [by not promoting employees involved in active litigation against the government employer] during the pendency of the administrative proceedings to avoid undermining its litigation strategy or inserting complexities into the administrative process); cf. Waste Mgmt. Inc. v. U.S. EPA, 669 F. Supp. 536, 541 (D.D.C. 1987) (no APA violation where agencys decision to suspend ocean incineration permits while rulemaking was pending served legitimate interest of allowing the agency to engage in reasoned decision making to consider reasonable alternatives and to develop new regulations to ensure environmental safety). 13
because there was no federal definition of marriage before DOMA. All Congress did was create a new exclusion of same-sex couples from federal rights and benefits after the reason they had previously been unable to receive such rights and benefits (i.e. that they were not married) had vanished. exclusion.9 Defendants offer no reason why Congress had an interest in creating this new Nor do Defendants attempt to explain this action in light of the purposes of
particular federal programs that are designed to protect and preserve the families formed by married couples. As articulated in Plaintiffs opening brief and as reflected in Defendants abandonment of Congresss stated rationale of preserving traditional heterosexual marriage a mere desire to express disapproval of the extension of marriage rights to same-sex couples cannot justify this discriminatory law. B. DOMAs Discrimination Among Married Couples Cannot Be Justified Based on National Consistency.
Defendants also suggest that DOMAs exclusion of married same-sex couples from federal rights and benefits can be justified by a purported governmental interest in preserving nationwide consistency in the distribution of [marriage-based federal] benefits, SJ Opp. at 14 i.e., in preventing a situation in which the terms marriage and spouse under federal statutes would have changed with each change in the status of same-sex marriage in each state, and the application of those federal statutes would have varied from state to state, SJ Opp. at 12. It cannot. First, as to benefits, the sheer breadth of DOMA reaches so far beyond the provision of federal benefits to render this asserted interest implausible at best. DOMA impacts countless nonpecuniary rights and obligations under federal law, see supra at 8, making clear that its aim
See SJ Opp. at 12 (claiming that Congress had to choose between two interests: continuing in all respects the tradition of accepting any marriage valid under state law, or continuing to define marriage, at the federal level, as only opposite-sex marriage). 14
and function is to serve as an all-purpose federal definition of marriage. See Romer, 517 U.S. at 635 (rejecting purported governmental interests where [t]he breadth of the [measure] is so far removed from these particular justifications that we find it impossible to credit them); City of Cleburne 473 U.S. at 446 (government may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational). Moreover, with respect to federal marriage-based law generally, DOMA does not create or even further anything resembling nationwide consistency. Eligibility requirements for heterosexual marriage differ from State to State, and federal law embraces those inconsistencies by treating opposite-sex couples as married so long as they are married under the laws of their State of residence.10 And DOMA does not create nationwide consistency among married couples. In fact, consistency is what would have existed without DOMA, and is what DOMA Indeed, these state-to-state differences in heterosexual marriage requirements have existed throughout our nations history without spawning federal legislation to make marriage consistent. Defendants suggest that the marital eligibility of same-sex couples is different from other inconsistencies in State marriage laws because no other State variations in marriage eligibility had become a topic of great debate in numerous States with such fluidity as whether two men or two women may marry. SJ Opp. at 14. The governments unsupported assertion is ahistorical and simply inaccurate. For instance, the topic of interracial marriage was a topic of great debate for decades, at times explosive. Nancy Cott, Public Vows (2000), at 163. Variations in divorce law and whether states had to recognize divorces from divorce mill States such as Nevada were equally controversial. See, e.g., Sherrer v. Sherrer, 334 U.S. 343, 356-57, 369-70 (1948) (Frankfurter, dissenting). Seventy seven of the 133 federal constitutional amendments relating to marriage proposed between 1871 and 2001 addressed federal jurisdiction for uniform national marriage and divorce legislation, a symptom of widespread distress over varying state laws. See Edward Stein, Past and Proposed Amendments to the United States Constitution Regarding Marriage, 82 Wash. U. L.Q. 611, 614-15 & Appx (2004). Thirty such amendments were in the 22-year period between 1884 and 1906. Id. at 637. Conflicts about moral laxity led to curbs on the general practice of common law marriage, Meister v. Moore, 96 U.S. 76, 78 (1877) (acknowledging common law tradition); Michael Grossberg, Governing the Hearth, Law and the Family in Nineteenth Century America (1985) at 83-100 (discussing conflict over state regulation). The eugenics movement of the early 20th century led states to impose extensive bans on consanguineous marriages, despite a continuing debate over the actual physiological effects of such marriages, Grossberg, supra at 145. Today, only a minority of States recognize common law marriages for some or all purposes, or permit first cousins to marry. 15
10
eliminated by denying same-sex married couples the eligibility for federal rights and benefits that identically situated different-sex couples enjoy. The only nationwide consistency DOMA creates is that gay and lesbian couples are consistently denied marriage rights and benefits irrespective of their marital or legal status. There is no reason to subject gay and lesbian persons to this type of consistency when identically situated married heterosexual couples are treated differently. See Garrett, 531 U.S. at 366 n.4 (measure will fail rational basis review where purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects). Even if there were some interest in having a consistent national definition of marriage and DOMA could be framed as creating some limited form of consistency, Defendants have not justified choosing this particular national definition whose sole effect is to discriminate against gay and lesbian couples. As with Defendants invocation of the status quo, the claimed interest in consistency is simply another way of saying that Congress wanted to preserve the state of affairs in 1996 when gay and lesbian persons did not enjoy federal rights and benefits because they were unmarried even after the rationale supporting that state of affairs had vanished. As already stated (and conceded), Congresss mere desire to make marital status determinations, or to preserve traditional marriage, is not a legitimate interest. See supra at 5. The only justification Defendants provide is the unsupported assertion that treating all gay and lesbian people the same is administratively easier than sorting out which ones are married and which ones are not. See SJ Opp. at 16 (Congress could reasonably have concluded that federal agencies should not have to deal immediately with a changing patchwork of state approaches to same-sex marriage.). With all due respect, that is nonsense. Either a couple is married under State law or it is not. Federal agencies already carry out federal law pertaining to
16
the marital status of individuals for heterosexual couples, and do so notwithstanding variations in the marriage eligibility requirements among the States, including common-law marriages. See SJ Opp. at 12. Defendants do not explain why treating married gay men and lesbians as married would create any additional burden on federal agencies already applying the varying State marriage eligibility requirements to different-sex couples, and the fact that identically situated heterosexual couples are treated differently shows this purported interest to be a ruse. See Garrett, 531 U.S. at 366 n.4. If anything, by creating for the first time a class of people who are married for State but not federal purposes, DOMA creates regulatory and legal confusion in an area that would have otherwise been exceedingly simple. Defendants proffered justification has no footing in the realities of the subject addressed by the legislation, and should therefore be rejected by the Court. Heller v. Doe, 509 U.S. 312, 321 (1993). C. State-by-State Debates Regarding Marriage for Same-Sex Couples Are Irrelevant to Federal Treatment of Married Same-Sex Couples.
Defendants also attempt to tie DOMAs preserving the status quo at the federal level to waiting to see how a national debate is to be resolved. SJ Opp. at 15. Even disregarding the incorrect suggestion that DOMA preserved the status quo, which it did not, marriage is a quintessentially State rather than federal concern. See MSJ at 13-14. It begs the question to claim that Congress had to wait for the debates within the various States to reach some sort of uniform national outcome before deciding on a uniform national policy toward same-sex married couples, see SJ Opp. at 16-17 (contending that Congress could not have foreseen the outcome of the debate regarding same-sex marriages, nor its timing), because it assumes a federal interest in a uniform, national approach to family law. As articulated supra, no such independent interest exists. If Defendants want to justify DOMA as creating a uniform national approach for purposes of the countless laws, rights, benefits, and programs the federal
17
government administers, they need to justify why such a uniform national approach discriminating against gay and lesbian married couples furthers the federal interests in the sweeping range of laws and regulations that DOMA amended. No such justification exists. D. DOMA Lacks Any Legitimate Purpose. SJ Opp. at 1.
Defendants concede, as they must, that DOMA is discriminatory.
Defendants understandably want to disavow and avoid discussion of the statutes legislative history, consisting not only of statements made by individual Congressmen, SJ Opp. at 17, but of the Committee Report itself, both of which contain a litany of troubling statements regarding Congresss purposes for the law. See MSJ at 8-10 & nn.4-6. Where, as here, a law lacks any legitimate explanation and the best its defenders can do is come up with a series of implausible post hoc rationalizations disconnected from the actual operation of the law serious equal protection concerns are warranted. See Romer, 517 U.S. at 632. Those concerns are only amplified where, as here, the stated reasons reflect animus against a disfavored group. When all is said and done, the most charitable articulation of the purpose of DOMA is that Congress wanted to enshrine a particular set of family-law preferences in federal law, as a rebuke to States that chose to pursue domestic relations policies with which Congress for whatever reasons disagreed. But Congresss mere desire to make its own family law or to express its views on same-sex couples cannot function as a legitimate basis for the discrimination that DOMA imposes. See MSJ at 36-37. Plaintiffs, and countless other couples like them, are married, and the States, not Congress, get to decide that question. Congresss mere displeasure with that fact is not enough of a reason to discriminate.11
11
With respect to Sections II and III of the Defendants Opposition to Summary Judgment, see SJ Opp. at 18-22, Plaintiffs rely upon their prior memorandum. See MSJ at 4147. Plaintiffs make the following additional points as to Plaintiff Dean Haras standing to pursue FEHB enrollment. First, OPMs final decision on Haras health insurance claim the only 18
CONCLUSION For the foregoing reasons, Plaintiffs respectfully ask that Plaintiffs Motion for Summary Judgment be granted. Respectfully submitted, /s/ Gary D. Buseck
basis for review relies solely on an FEHB ground for denial. See Affidavit of Dean Hara, Ex. B (Doc. 31). See Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1576 n.4 (Fed. Cir. 1995) (final decision of the board superseded the initial decision of the administrative judge; courts warrant is to review final decisions). OPMs initial decision is legally irrelevant and, indeed, in pointing to it, the Defendants only highlight that OPM withdrew the annuitant issue in response to Haras arguments in his letter seeking reconsideration. See Second Affidavit of Gary D. Buseck, February 16, 2010 (Second Buseck Aff.), Exs. A (Initial Decision) & B (Letter Seeking Reconsideration). Cf. Marin TV Servs. Partners, Ltd. v. FCC, 936 F.2d 1304, 1308-09 (D.C. Cir. 1991) (statement in decision without analysis is insufficient to support broader agency rationale). Second, while an appellee need not cross-appeal to raise alternative arguments to support a decision below, an appellee cannot, without a cross-appeal, undermine facts established below. See Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699, 702 (3d Cir. 1988); Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937). As noted in Plaintiffs Memorandum in Support of Summary Judgment, the facts on Haras eligibility for a survivor annuity have already been conclusively determined at the MSPB. See MSJ at 46-47. Therefore, whether Hara qualifies as a survivor annuitant is no longer a live issue in the Federal Circuit. Finally, while Defendants assert that Hara cannot seek FEHB coverage until he is declared an annuitant, they cite no support for that proposition and OPM itself asserted, in its initial decision, only that you [Hara] must have been eligible to receive a survivor annuity. Second Buseck Aff. Ex. A (emphasis added). 19
GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck, BBO #067540 gbuseck@glad.org Mary L. Bonauto, BBO #549967 mbonauto@glad.org Nima R. Eshghi, BBO #633716 neshghi@glad.org Janson Wu, BBO #609949 jwu@glad.org Samuel P. Bickett, BBO #676190 sbickett@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 Telephone (617) 426-1350 Facsimile (617) 426-3594 Attorneys for Plaintiffs
FOLEY HOAG LLP Claire Laporte, BBO #554979 claporte@foleyhoag.com Vickie L. Henry, BBO #632367 vhenry@foleyhoag.com Matthew Miller, BBO #655544 mmiller@foleyhoag.com Amy Senier, BBO #672912 asenier@foleyhoag.com Seaport World Trade Center West 155 Seaport Blvd. Boston, MA 02210 Telephone (617) 832-1000 Facsimile (617) 832-7000 Attorneys for Plaintiffs SULLIVAN & WORCESTER LLP David J. Nagle, BBO # 638385 dnagle@sandw.com Richard L. Jones, BBO # 631273 rjones@sandw.com One Post Office Square Boston, MA 02109 Telephone (617) 338-2873 Facsimile (617) 338-2880 Attorneys for Plaintiffs Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary BoweShulman, and Dorene Bowe-Shulman
JENNER & BLOCK LLP Paul M. Smith (pro hac vice) psmith@jenner.com Luke C. Platzer (of counsel) lplatzer@jenner.com Daniel I. Weiner (of counsel) dweiner@jenner.com Anna M. Baldwin (of counsel) abaldwin@jenner.com 1099 New York Ave, NW, Suite 900 Washington, DC 20001 Telephone (202) 639-6060 Facsimile (202) 661-4948 Attorneys for Plaintiffs
Certificate of Service I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on February 16, 2010. /s/ Gary D. Buseck Gary D. Buseck 20 .

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Case3:10-cv-00257-JSW Document153

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) ) ) ) )

No. 1:09-cv-10309 JLT

CONCLUSION AND RELIEF REQUESTED ............................................................................ 47

STATEMENT OF FACTS A. Federal Marriage-Based Laws, Programs, Rights, and Responsibilities.

preserves the status quo, furthers an interest in incremental[ism], and preserves 11

Determining Marital Status Is Exclusively a State Concern.

DOMA Cannot Be Justified as Preserving Traditional Marriage.

/s/ Gary D. Buseck

/s/ Gary D. Buseck Gary D. Buseck

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) ) ) ) )

No. 1:09-cv-10309 JLT

Discrimination Based on Sexual Orientation Merits Heightened Scrutiny.

Defendants concede, as they must, that DOMA is discriminatory.

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