Case: 10-2207

Document: 00116344212

Page: 1

Date Filed: 03/07/2012

Entry ID: 5624264

March 7, 2012

By Electronic Case Filing The Honorable Margaret Carter, Clerk of Court United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210 Re: Gill v. Office of Personnel Management, Nos. 10-2204, 10-2207 & 10-2214 Dear Ms. Carter: Pursuant to Rule 28(j), the Bipartisan Legal Advisory Group of the U.S. House of Representatives submits this letter regarding Golinski v. U.S. Office of Personnel Management, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012), appeal docketed, No. 12-15388 (9th Cir. Feb. 24, 2012). The Golinski decision suffers from significant flaws. First, the court did not seriously engage Baker v. Nelson, 409 U.S. 810 (1972). Baker held that the Equal Protection Clause does not require the States to define marriage to include samesex relationships. The Golinski court recognized Bakers effect on state marriage laws. Golinski, supra, at *8 n.5. But it went on to invalidate DOMA without explaining why the result would be different under federal law. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) ([t]his Courts approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protections claims under the Fourteenth Amendment.). Second, the Golinski court failed to follow binding Ninth Circuit precedent holding that classifications based on sexual orientation are analyzed under the rational basis test. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990). Instead, it declared that High Tech is outdated and no longer binding precedent. Golinski, supra, at *10. In so doing, the Golinski court not only exceeded its authority as a district court, but became the only Article III court to hold that DOMA is subject to heightened scrutiny. Golinski relied on Lawrence v. Texas, 539 U.S. 558 (2003), but the Ninth Circuit has held that Lawrence, a substantive due process case, did not change the Circuits standard of

Case: 10-2207

Document: 00116344212

Page: 2

Date Filed: 03/07/2012

Entry ID: 5624264

review in equal protection cases. See Witt v. Dept of Air Force, 527 F.3d 806, 821 (9th Cir. 2008). Third, the Golinski opinion ignored, and did not cite, the binding precedent of Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), which upheld a federal immigration statute defining the word spouse to mean a person of the opposite sex against an equal protection challenge brought by a married same-sex couple. Needless to say, an appeal has been filed in Golinski. Respectfully submitted, /s/ Paul D. Clement Paul D. Clement Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives

1919 M Street, N.W. Suite 470 Washington D.C. 20036 Telephone 202.234.0090 www.bancroftpllc.com Facsimile 202.234.2806