Additional Counsel Listed Next Page Attorneys For Plaintiffs

Case 8:12-cv-01137-CBM-AJW Document 12
Filed 08/23/12 Page 1 of 47 Page ID #:82
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
) ) ) ) ) ) ) ) Plaintiffs, ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND SECURITY; ) ALEJANDRO MAYORKAS, Director, United ) ) States Citizenship and Immigration ) ) Services; and ) UNITED STATES CITIZENSHIP & ) ) IMMIGRATION SERVICES, ) ) Defendants. ) __________________________________ ) MARTIN R. ARANAS, IRMA RODRIGUEZ, AND JANE DELEON,
SACV12-01137 CBM (AJWx) NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
Hearing: September 24, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall Spring St., Courtroom No. 2
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Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///
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To defendants and their counsel of record: PLEASE TAKE NOTICE that on September 24, 2012, at 10:00 a.m., or as soon thereafter as counsel may be heard, plaintiffs will and do hereby move the Court for a preliminary injunction enjoining defendants, their agents and successors in office, pending final judgment in this case from 1) 2) removing or detaining plaintiffs DeLeon and Arenas and those similarly situated; denying employment authorization to plaintiffs DeLeon and Arenas and those similarly situated; 3) denying benefits under the Immigration and Nationality Act (INA) solely because the immigrant has a spouse of the same sex; and 4) deeming plaintiffs DeLeon and Arenas those similarly situated inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B)(i), where such persons would not have accrued more than six months in unlawful status but for 3 of the Defense of Marriage Act, 1 U.S.C. 7.
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This motion is based upon plaintiffs complaint, the accompanying memorandum of points and authorities and exhibits, and upon all other matters of record herein. This motion is made following conferences of counsel pursuant to Local Rule 7-3 which took place on July19 and 26, and August 2, 9, and 13, 2012. Defendants stated they decline to take a position on this motion until after they have had an opportunity to review plaintiffs moving papers. Dated: August 23, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey _______________ /s/ Carlos R. Holgun_____________ Attorneys for Plaintiffs ///
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CERTIFICATE OF SERVICE No. SACV12-1137 JVS (MLGx) I hereby certify that on this 23rd day of August, 2012, I electronically filed the foregoing NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system.
/s/ Karena Heredia __________________ Dated: August 23, 2012. ///
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
) ) ) ) ) ) ) ) Plaintiffs, ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND SECURITY; ) ALEJANDRO MAYORKAS, Director, United ) ) States Citizenship and Immigration ) ) Services; and ) UNITED STATES CITIZENSHIP & ) ) IMMIGRATION SERVICES, ) ) Defendants. ) __________________________________ ) MARTIN R. ARANAS, IRMA RODRIGUEZ, AND JANE DELEON,
SACV12-01137 CBM (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION.
Hearing: September 24, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall Spring St., Courtroom No. 2
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OUTLINE OF CONTENTS I Introduction .......................................................................................................... 1 II Summary of the argument................................................................................... 3 III Plaintiffs will likely succeed on the merits of the claim that DOMA denies substantive due process. ...................................................................... 6 A DOMA must be subjected to heightened scrutiny.................................... 6 B No important governmental interest justifies denying same-sex spouses and their children lawful immigration status. ....................... 10 1 Defending heterosexual marriage is not a significant governmental interest. .............................................................. 10 2 Defending one view of morality is not a substantial reason to deny same-sex spouses or their children lawful status. ....... 11 3 No resources are saved by denying lawful immigration status to same-sex spouses and their children. ......................... 12 C Denying plaintiffs DeLeon and Aranas lawful immigration status is not necessary................................................................................... 13 IV Plaintiffs raise a serious question whether DOMA 3 as applied denies equal protection. ........................................................................................... 14 A The discriminatory scheme DOMA 3 prescribes should be subjected to heightened scrutiny. ....................................................... 17 B The justifications for DOMA fail to withstand even rational basis scrutiny. .............................................................................................. 19 1 DOMA 3 does nothing to promote responsible childrearing. ..................................................................................... 19 2 DOMA is not rationally related to a consistent definition of marriage. .................................................................................. 21
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V The balance of hardships tips decidedly in plaintiffs favor. ........................... 22 VI Conclusion....................................................................................................... 26
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TABLE OF AUTHORITIES CASES Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) ........ 16 Ali v. Immigration & Naturalization Service, 661 F. Supp. 1234 (D. Mass. 1986) ........... 7 Almeida-Sanchez v. United States, 413 U.S. 266; 93 S.Ct. 2535; 37 L.Ed.2d 596 (1973). 8 American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995)......... 8 Bark v. Immigration & Naturalization Service, 511 F.2d 1200 (9th Cir. 1975)................. 2 Baxtrom v. Herold, 383 U.S. 107; 86 S.Ct. 760; 15 L.Ed.2d 620 (1965)......................... 15 Bowers v. Hardwick, 478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140 (1986) ............... 17 Carlson v. Landon, 342 U.S. 524; 72 S.Ct. 525; 96 L.Ed. 547 (1952)............................... 8 Cerrillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) ........................................................ 6 City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432 (1985).................................. 9 Clark v. Jeter, 486 U.S. 456; 108 S.Ct. 1910; 100 L.Ed.2d 465 (1988)........................... 15 Dragovich v. United States Dep't of the Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011) ........................................................................................................................................ 11 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) ............................................................................................................................. 22 Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc), rev'd on other grounds sub nom. Reno v. Flores, 507 U.S. 292 (1993)..................................................................... 16 Fong Yue Ting v. United States, 149 U.S. 698; 13 S. Ct. 1016; 37 L. Ed. 905 (1893)....... 8 Francis v. INS, 532 F.2d 268 (2d Cir. 1976) .................................................................... 15 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010).................... 11, 12, 20 Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012)...................................................................................................... 4, 13, 17 High Tech Gays v. Defense Industrial Security Clearance Office, 909 F.2d 375 (9th Cir. 1990)............................................................................................................................... 18
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In re Balas, 449 B.R. 567, 578 (C.D. Cal. 2011).................................................. 11, 12, 13 In re Levenson, 587 F.3d 925 (9th Cir. 2009)................................................................... 10 INS v. Chadha, 462 U.S. 919; 103 S.Ct. 2764; 77 L.Ed.2d 317 (1983) ............................. 8 Kirchberg v. Feenstra, 450 U.S. 455 (1981) .................................................................... 17 Lawrence v. Texas, 539 U.S. 558; 123 S.Ct. 2472; 156 L.Ed.2d 508 (2003)......... 6, 11, 19 Levenson II, 587 F.3d at 932........................................................................... 12, 19, 20, 21 Los Angeles Memorial Coliseum Comm v. National Football League, 634 F.2d 1197 (9th Cir. 1980) .................................................................................................................. 3 Manwani v. U.S. Dep't of Justice, 736 F. Supp. 1367 (W.D.N.C. 1990)............................ 8 Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012)................... 10, 12, 16, 17 Matter of Dorman, 25 I. & N. Dec. 485 (Atty. Gen. May 5, 2011).................................. 16 Matter of Lovo-Lara, 23 I. & N. Dec. 746 (BIA 2005) ...................................................... 1 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) ............................................................................................................................. 17 Nordlinger v. Hahn, 505 U.S. 1; 112 S.Ct. 2326; 120 L.Ed.2d 1 (1992) ......................... 14 Pedersen v. Office of Pers. Mgmt., 2012 U.S. Dist. LEXIS 106713 ................................ 20 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2011) ................................................................ 19 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), affd _ F.3d _, 2012 U.S. App. LEXIS 2328 (9th Cir. 2011).................................................................... 11, 20 Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846-51; 112 S.Ct. 2791; 120 L.Ed.2d 674 (1992) .......................................................................................................... 6 Plyler v. Doe, 457 U.S. 202; 102 S.Ct. 2382; 72 L.Ed.2d 786 (1982) ................. 12, 15, 19 Sports Forum Ins. v. United Press, Inter., Inc., 686 F.2d 750 (9th Cir. 1982) ................... 3 Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981)........................................................... 15 United States v. Casimiro-Benitez, 533 F.2d 1121 (9th Cir.), cert. denied, 429 U.S. 926 (1976) ............................................................................................................................... 9 United States v. Henry, 604 F.2d 908 (5th Cir. 1979) ........................................................ 9 United States v. Katkhordeh, 477 F.3d 624 (8th Cir. 2007) ............................................. 16
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United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264; 135 L. Ed. 2d 735 (1996) ...... 17 Weber v. Aetna Casualty & Surety Co., 406 U.S. 164; 92 S.Ct. 1400; 31 L.Ed.2d 768 (1972) ....................................................................................................................... 18, 19 Windsor v. United States, 833 F. Supp. 2d 394 (S.D. N.Y. 2012).............................. 10, 21 Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) ....................................... 7, 14, 16 Witt v. United States Dep't of the Air Force, 739 F. Supp. 2d 1308 (W.D. Wa. 2010)....................................................................................................... 8, 9, 14 Wong Wing v. United States, 163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 (1896).............. 9 Yepes-Prado v. United States INS, 10 F.3d 1363 (9th Cir. 1993)..................................... 23
STATUTES AND REGULATIONS Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7......................................................................................................................... 2 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990)..20 8 C.F.R. 274a.12(c)(14) ................................................................................................. 24 8 U.S.C. 1101, et seq...................................................................................................... 1 8 U.S.C. 1151(b)(2)(A)(i) ............................................................................................... 1 8 U.S.C. 1182(a)(9)(B)(i)........................................................................................... 3, 28 8 U.S.C. 1182(i) .............................................................................................................. 1 8 U.S.C. 1186a(d)(1)(A)(i)(I) .......................................................................................... 1 OTHER AUTHORITIES H.R. Rep. No. 104-664 ..................................................................................................... 10 H.R. Rep. No. 1365, 82d Cong., 2d Sess. 2780 (1952), reprinted in 1952 U.S. Code Cong. & Ad. News 1653 .................................................................................................. 1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION I INTRODUCTION This is an action for declaratory and injunctive relief challenging discrimination in the granting of benefits under the Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq., against lawfully married couples solely because the spouses are of the same sex. Numerous provisions of the INA confer benefits upon the spouses of U.S. citizens and lawful permanent residents. E.g., 8 U.S.C. 1151(b)(2)(A)(i) (granting spouses of U.S. citizens right to reside lawfully and permanently in the United States); 8 U.S.C. 1182(i) (providing for waiver of inadmissibility where removal of immigrant would result in extreme hardship to [her] citizen spouse or parent ). These provisions reflect a deep-rooted tradition that U.S. immigration law should foster family unity. See H.R. Rep. No. 1365, 82d Cong., 2d Sess. 2780 (1952), reprinted in 1952 U.S. Code Cong. & Ad. News 1653, 1680. The INA itself posits no general definition of spouse. Instead, whether a foreignborn spouse is entitled to lawful immigration status generally turns on whether his or her marriage is valid under the law of the jurisdiction in which it was celebrated. Matter of Lovo-Lara, 23 I. & N. Dec. 746, 748 (BIA 2005); see also 8 U.S.C. 1186a(d)(1)(A)(i)(I) (defining qualifying marriage as one which was entered into in
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accordance with the laws of the place where the marriage took place.). Under the INA, state law decides whether an applicant is a spouse for immigration purposes.1 Section 3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA), however, bars federal agencies from recognizing marriages between spouses of the same sex, notwithstanding the lawfulness of those marriages under state law.2 At the same time as DOMA denies lawful status to immigrant members of wholly lawful and long-enduring same-sex marriages, defendants routinely grant such benefits to immigrant members of recent, often transitory, different-sex marriages, including spouses of visiting foreign students, newlyweds, mail order spouses of permanent resident aliens, and fiancs of U.S. citizens who have yet to marry. Plaintiffs seek a preliminary injunction pending a resolution of DOMAs constitutionality barring defendants from (1) deporting or removing immigrants denied lawful status solely because they and
In addition, a marriage serves as a valid predicate for immigration benefits only if was not entered into for the purpose of procuring such benefits. Bark v. Immigration & Naturalization Service, 511 F.2d 1200, 1201 (9th Cir. 1975).
2
1 U.S.C. 7 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.
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their U.S. citizen or permanent residents spouses are of the same sex, and from instructing or advising such immigrants to depart the United States; (2) denying employment authorization to immigrants lacking lawful permanent resident status solely because they and their U.S. citizen or permanent resident spouses are of the same sex; (3) denying immigration benefits under the INA solely because the immigrant or the non-immigrant has a spouse of the same sex; and (4) treating immigrants who have applied for benefits under the INA as acquiring unlawful presence thereby triggering the three- and ten-year bars to future lawful admission set out in 8 U.S.C. 1182(a)(9)(B)(i) solely because they and their U.S. citizen or permanent residents spouses are of the same sex. II SUMMARY OF THE ARGUMENT Plaintiffs are entitled to a preliminary injunction if they establish either (1) probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Sports Forum Ins. v. United Press, Inter., Inc., 686 F.2d 750, 753 (9th Cir. 1982).3 Plaintiffs easily demonstrate a probability of success on both their due process and equal protection claims, and there is no doubt they have suffered and continue to suffer irreparable harm
These two tests are not separate, but are part of a single continuum. Los Angeles Memorial Coliseum Comm v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). -3-
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as a result of DOMAs application while its constitutionality is being tested in the courts. First, DOMA discriminates on the basis of sex. If plaintiff Jane DeLeon were John DeLeon, or plaintiff Irma Rodriguez Irving Rodriguez, their marriage would afford Ms. DeLeon and her son plaintiff Martin Aranas a path to lawful residence. Golinski v. United States Office of Pers. Mgmt., 824 F. Supp. 2d 968, 983 (N.D. Cal. 2012) (DOMA operates to restrict Ms. Golinskis access to federal benefits because of her sex.). This nominal sexual classification overlays the enactments true raison dtre: i.e., to conform federal law to an irrational opprobrium of homosexuality. Id. (But DOMA also operates to restrict Ms. Golinskis access to federal benefits because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.). DOMAs ide fixe with sex and sexuality raises obvious constitutional questions. Sex and sexuality are among any individuals most personal characteristics. If government wishes to assay ones sex or sexuality, the Constitution requires at minimum a substantial reason for doing so. Yet DOMA fails to further any of the governmental interests nominally offered for it, whether promoting responsible procreation, optimal child-rearing, or traditional morality. Under this Circuits jurisprudence, it is more probable than not that plaintiffs will prevail on their claim that DOMA, as applied to plaintiffs and those similarly situated, denies substantive due process. DOMA 3 also denies same-sex couples equal protection of the law.
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Discriminating against same-sex couples in the granting of federal benefits does nothing to further any legitimate governmental interest. Defendants concede as much, and they have notified the Court they believe 3 unconstitutional. See Notice to Court, July 25, 2012 (Dkt. No. 5). Plaintiffs plainly raise a substantial question whether DOMA 3 denies equal protection. Finally, the balance of hardships favors plaintiffs. Since no legitimate governmental interest underlies DOMA 3, the Governments continuing to enforce it pendente lite does no discernable good, yet results in irreparable injury to lawfully married same-sex couples and their children. Denied a routine path to lawful status, plaintiff immigrant spouses must leave or else remain in the U.S. as trespassers: they are often barred from working, accrue time toward multi-year bars to attaining lawful status in the future if DOMA is declared unconstitutional, are told to leave the country, and endure the constant threat of arrest and deportation. On the other hand, they are generally not informed that the Administration believes DOMA is unconstitutional, nor are they advised about how they may avoid irreparable harm pending a definitive court ruling on DOMAs constitutionality. In sum, the probability plaintiffs will succeed on the merits of their claims, coupled with the certainty of irreparable injury pendente lite to plaintiffs and their class members, present a paradigmatic case for preliminary injunctive relief. Plaintiffs pray the Court grant this motion and enter a preliminary injunction in the form lodged herewith.
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III
PLAINTIFFS WILL LIKELY SUCCEED ON THE MERITS OF THE CLAIM THAT DOMA
DENIES SUBSTANTIVE DUE PROCESS.
DOMA must be subjected to heightened scrutiny.
It is well settled that the Due Process Clause of the Fifth Amendment generally protects unenumerated substantive rights. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846-51; 112 S.Ct. 2791; 120 L.Ed.2d 674 (1992). Among these rights is the right to form and maintain family relationships free from governmental officiousness. Lawrence v. Texas, 539 U.S. 558, 574; 123 S.Ct. 2472; 156 L.Ed.2d 508 (2003) (affirming that persons in a homosexual relationship may [also] seek autonomy for personal decisions relating to marriage, procreation, family relationships, child rearing, and education).4 Although the Supreme Court has yet to articulate the precise constitutional test applicable to burdens placed on homosexual relationships, it has made clear heterosexuals have no monopoly on the right to personal autonomy. Lawrence v. Texas, supra, 539 U.S. at 574.5 Elaborating upon Lawrence, the Ninth Circuit holds that
In Planned Parenthood of Southeastern Pa. v. Casey, supra, the Supreme Court described individual freedom in procreation, marriage and family relationships as nothing less than the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. 505 U.S. at 851. Ms. DeLeons U.S. citizen spouse, plaintiff Irma Rodriguez, also has constitutionally significant rights at stake in this action. First, she has an absolute right to remain in the United States. Cerrillo-Perez v. INS, 809 F.2d 1419, 1423 (9th Cir. 1987) (citizen children have, of course, an absolute right to remain -65
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penalizing individuals because they are homosexuals must serve important governmental interests as applied against particular persons. In Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) (Witt 2), the Air Force suspended Major Margaret Witt from duty as a nurse pursuant to Congresss dont ask, dont tell (DADT) policy when it discovered she had been in a long-term relationship with another woman. Id. at 809. In light of Lawrence, the court held that penalizing someone on the basis of their sexual orientation requires something more than traditional rational basis review. Id. at 813. Instead, such penalties must pass a tri-partite test: 1) The government must demonstrate it has an important interest for imposing penalties on the basis of sexual orientation; 2) the penalty must significantly further the governments interest; and 3) the penalty must be necessary: that is, a less intrusive means must be unlikely to achieve substantially the governments interest. Id. at 819.6 The court held that DADT did advance[] an important governmental interest management of the military an area in which congressional exercise of authority is at its apogee Id. at 821. However, the court remanded for the district court to
in the United States). Second, the INA vests Ms. Rodriguez with a statutory entitlement to submit and substantiate [her] marriage. Ali v. Immigration & Naturalization Service, 661 F. Supp. 1234, 1246 n.6 (D. Mass. 1986) (Immediate relative status is not a discretionary government entitlement. Once the INS determines that an alien is married to an American citizen . . . it must grant immediate relative status). The court emphasized that in applying this test a court must determine not whether [a challenged policy] has some hypothetical, post hoc rationalization in general, but whether a justification exists for the application of the policy as applied to the plaintiff. Id. at 819 (emphasis added). -76
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determine whether discharging Major Witt would significantly further that interest. Id.7 On remand the trial court found that Major Margaret Witt was an effective leader, a caring mentor, and an integral member of an effective team [The] discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion.. Witt v. United States Dept of the Air Force, 739 F. Supp. 2d 1308, 1315 (W.D. Wa. 2010) (Witt 3). Application of DADT therefore violates Major Witts substantive due process rights under the Fifth Amendment to the United States Constitution. Id. The parallels between Witt and the case at bar are palpable. First, Congresss power to regulate immigration and the military are comparably broad. See INS v. Chadha, 462 U.S. 919, 940-41; 103 S.Ct. 2764; 77 L.Ed.2d 317 (1983) (Congresss power to regulate immigration plenary).8
Among the facts counter-indicating the constitutionality of Major Witts discharge were her record as a model officer whose sexual activities hundreds of miles away from base did not affect her unit Id. at 821. It is axiomatic that immigration regulation must be consistent with the Constitution. AmericanArab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1065 (9th Cir. 1995); see also AlmeidaSanchez v. United States, 413 U.S. 266, 272; 93 S.Ct. 2535; 37 L.Ed.2d 596 (1973) (no Act of Congress [in the immigration context] can authorize a violation of the Constitution); Carlson v. Landon, 342 U.S. 524, 537; 72 S.Ct. 525; 96 L.Ed. 547 (1952) (the power to expel aliens is, of course, subject to judicial intervention under the paramount law of the Constitution); Fong Yue Ting v. United States, 149 U.S. 698, 711, 713; 13 S. Ct. 1016; 37 L. Ed. 905 (1893) (immigration power must be exercised consistent[ly] with the Constitution and the judiciary must intervene where required by the paramount law of the Constitution); Manwani v. U.S. Dept of Justice, 736 F. Supp. 1367, 1382 (W.D.N.C. 1990) (invalidating section of the Immigration Marriage Fraud Act as violative of due process). -88
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Second, in both Witt and the instant case the Government declares individuals personae non gratae merely because of their sex and sexual orientation. Just as the Government sought to bar Major Witt from the Navy, here it seeks to bar Ms. DeLeon and her son from the United States. Third, as in Witt, here the Government has never considered whether excluding Ms. DeLeon and her son or those similarly situated actually does any good. The Government assumes that granting immigration benefits to any same-sex couple will have some deleterious effect, but it has never evaluated whether granting plaintiff DeLeon or her son status would do violence to any legitimate governmental interest.9 The Government must accordingly establish that denying individuals lawful status because of their sex and/or sexual orientation substantially furthers an important governmental interest and that there are no less drastic means by which that interest may be secured. There is no appreciable likelihood the Government will carry this burden of proof as against plaintiff or any of their proposed class members.
It is equally well established that aliens seeking lawful status are persons within the meaning of the Fifth Amendment and therefore entitled to due process. Wong Wing v. United States, 163 U.S. 228, 238, 16 S. Ct. 977, 41 L. Ed. 140 (1896) (persons within the territory of the United States ... and ... even aliens ... [may not] ... be deprived of life, liberty or property without due process of law); United States v. Henry, 604 F.2d 908, 912-913 (5th Cir. 1979) (unadmitted alien enjoys right to Fifth Amendment due process protections at trial); United States v. Casimiro-Benitez, 533 F.2d 1121 (9th Cir.), cert. denied, 429 U.S. 926 (1976) (same). It is not enough to assert that excluding homosexuals does some general good. Because heightened scrutiny applies, the burden is on the government to justify the law and its intrusion into the lives of those complaining about its application to them. Witt 3, supra, 739 F. Supp. 2d at 1313 (emphasis supplied). -99
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No important governmental interest justifies denying same-sex spouses and their children lawful immigration status.
According to DOMAs legislative history, denying recognition of same-sex marriages furthers three ostensible interests: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; and (3) preserving scarce government resources. H.R. Rep. No. 104-664, at *12-*18. These interests are irrational prejudices that withstand no scrutiny at all. 1 Defending heterosexual marriage is not a significant governmental interest.
Numerous courts, including this Circuit, have now concluded that penalizing samesex couples has no coherent relationship to promoting heterosexual marriage: A same-sex couple who seek [government] benefits are already married. Also, gays and lesbians will not be encouraged to enter into marriages with members of the opposite sex by the governments denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from entering into same-sex marriages; so, the denial cannot be said to nurture or defend the institution of heterosexual marriage. In re Levenson, 587 F.3d 925, 932 (9th Cir. 2009) (Levenson II).10
Accord, Massachusetts v. United States HHS, 682 F.3d 1, 14 (1st Cir. 2012) (no demonstrated connection between DOMAs treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.); Windsor v. United States, 833 F. Supp. 2d 394, n.4 (S.D. N.Y. 2012) (The Court finds it implausible that section 3 does anything to persuade those married persons (who are homosexuals) to abandon their current marriages in favor of - 10 -
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There is virtually no likelihood the Government will carry its burden of showing that DOMA 3 defends or nurtures heterosexual marriage. DOMA 3 is far less about promoting heterosexual marriage than it is about denigrating same-sex marriages, no matter how bona fide, enduring, and salutary. That is not a governmental interest supporting imposition of the penalties DOMA 3 prescribes. 2 Defending one view of morality is not a substantial reason to deny same-sex spouses or their children lawful status.
Nor is DOMA 3 sustainable as a defense of traditional morality. Penalizing an unpopular minority is invariably a sop to someones morality. But this is not a sufficient reason to infringe upon plaintiffs personal autonomy. The Supreme Court is clear that because the governing majority in a State has traditionally viewed [homosexuality] as immoral is not a sufficient reason for upholding a law prohibiting the practice. Lawrence, supra, 539 U.S. at 577 (citation omitted).11
heterosexual relationships.); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 389 (D. Mass. 2010), affd sub. nom. Massachusetts v. United States HHS, supra, ([T]his court cannot discern a means by which the federal governments denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.); In re Balas, 449 B.R. 567, 578 (C.D. Cal. 2011) (It would not appear to be fair or rational ... that allowing the Debtors to file a joint bankruptcy petition will in any way harm any marriage of heterosexual persons.); Dragovich v. United States Dept of the Treasury, 764 F. Supp. 2d 1178, 1190 (N.D. Cal. 2011) (The exclusion of same-sex couples from the federal definition of marriage does not encourage heterosexual marriages.); Perry, supra, 671 F.3d at 1089 (It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010), affd 671 F.3d 1052 (9th Cir. 2011) (Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage ...). Following Lawrence, numerous courts have held that government may not penalize same-sex couples on the ground they are immoral. See, e.g., Perry, supra, 671 F.3d at 1093 (A preference for the way - 11 11
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Again there is no likelihood the Government will carry its burden of justifying DOMA 3 as a means to further traditional morality. 3 No resources are saved by denying lawful immigration status to samesex spouses and their children.
Nor does applying DOMA 3 against same-sex couples justifiable as a cost-saving measure. Denying a benefit always conserves some resource, but that says nothing about whether it is proper to penalize a particular individual or group: [A] concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources. Plyler v. Doe, 457 U.S. 202, 227; 102 S.Ct. 2382; 72 L.Ed.2d 786 (1982).12
things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves...); Levenson II, supra, 587 F.3d at 932 (DOMA defend[s] traditional notions of morality ... only by punishing same-sex couples ... and thus exhibits the bare desire to harm same-sex couples ...); Massachusetts v. United States HHS, supra, 682 F.3d at 15 (Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis.); In re Balas, supra, 449 B.R. at 578 ([N]o creditors notion of morality ... has any valid bearing on the creditors rights in this case.); Dragovich, supra, 764 F. Supp. 2d at 1190 (Nor does moral condemnation of homosexuality provide the requisite justification for DOMAs section three. The bare desire to harm a politically unpopular group is not a legitimate state interest.). Gill, supra, 699 F. Supp. 2d at 389-90 (Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. ... [T]he fact that the governing majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason .). 12 Numerous courts have held that cost-saving is insufficient reason to penalize same-sex couples. See Levenson II, 587 F.3d at 933 (There is no rational relationship between the sex of an employees spouse and the governments desire to limit its employee health insurance outlays; the government could save far more money using other measures, such as by eliminating coverage for all spouses, ...); Massachusetts v. United States HHS, supra, 682 F.3d at 14 (where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction); Gill, supra, 699 F. Supp. 2d at 390 (This court can - 12 -
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Even assuming, arguendo, that cost-saving were an actual interest underlying DOMA 3,13 plaintiffs know of nothing to suggest that Congress was concerned with parceling out non-financial resources, such as immigrant admissions. No saving of costs will result from denying as opposed to approving plaintiffs DeLeon and Aranas lawful residence applications.14 And even were any such savings possible, no good reason would support targeting them to bear the brunt of resource conservation. C Denying plaintiffs DeLeon and Aranas lawful immigration status is not necessary.
The foregoing has shown that no legitimate, much less important, governmental interest undergirds DOMAs generally denying same-sex couples immigration benefits. It is even less likely the Government will carry its burden of showing that DOMA 3, as applied against plaintiffs DeLeon and Aranas, significantly furthers those nominal interests, much less that doing so is necessary to further those interests. In Witt the Ninth Circuit noted Major Witt was a model officer whose sexual
discern no principled reason to cut government expenditures at the particular expense of plaintiffs, ...); Dragovich, supra, 764 F. Supp. 2d at 1190 (the preservation of resources does not justify barring some arbitrarily chosen group of individuals from a government program.); In re Balas, supra, 449 B.R. at 578-79 (This court can conceive of no fair, just and rational basis to conclude that DOMA will contribute to ... preserving scarce government resources ...); Golinski v. United States Office of Pers. Mgmt., supra, 824 F. Supp. 2d at 994 ([T]he preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program.). According to the legislative history of DOMA 3, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. Gill, supra, 699 F. Supp. 2d at 390 n.116 (citations omitted). Indeed, denied applications are far more likely to be appealed, increasing rather than decreasing the Governments dedication of resources to the case. - 13 14 13
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activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion. Witt 2, 527 F.3d at 821. Likewise here, even assuming, arguendo, significant governmental interests were at stake in DOMA 3, the Government cannot show that discriminating against plaintiffs DeLeon and Aranas and those similarly situated is necessary to further those interests. Relegating plaintiffs DeLeon and Aranas to the status of unlawful entrants will in no way advance any of the nominal interests underlying DOMA 3, even were those interests legitimate. Nor could the Government show it lacks less intrusive means to secure those ostensible interests. Witt 3, supra, 739 F. Supp. 2d at 1313 (if a discriminatory scheme does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three.). Plaintiffs have demonstrated that they are likely to prevail on their claim that defendants applying DOMA 3 to deny immigration status offends due process. IV PLAINTIFFS RAISE A SERIOUS QUESTION WHETHER DOMA 3 AS APPLIED DENIES EQUAL PROTECTION. The equal protection component of the Fifth Amendment keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. Nordlinger v. Hahn, 505 U.S. 1, 10; 112 S.Ct. 2326; 120 L.Ed.2d 1 (1992).
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Classifications must therefore have some relevance to the purpose for which the classification is made. Baxtrom v. Herold, 383 U.S. 107, 111; 86 S.Ct. 760; 15 L.Ed.2d 620 (1965). The justification the Constitution demands of a classification turns on its nature and the importance of the individual liberty it impairs. Generally a court applies a rational basis test under which a classification need only bear a reasonable relationship to a legitimate governmental interest. Plyler, supra, 457 U.S. at 216-17. When a classification impinges upon a fundamental right or targets a historically disadvantaged group, strict scrutiny applies. Id. at 216-217.15 Such classifications fall unless they are narrowly tailored to serve a compelling governmental interest. Id. Finally, heightened scrutiny, falling between strict scrutiny and the rational basis test, applies to other classifications, such as those based on sex or illegitimacy. Clark v. Jeter, 486 U.S. 456, 461; 108 S.Ct. 1910; 100 L.Ed.2d 465 (1988). To withstand intermediate scrutiny, a classification must bear a substantial relationship to an important governmental interest. Id.16
A suspect criterion is one that is so infrequently related to the realization of a legitimate governmental objective that its invocation as a reason for differential treatment is usually the mark of enmity and prejudice. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Race and national origin are classic examples of suspect criteria. Id. Courts have repeatedly affirmed that immigrants are entitled to equal protection of the law. E.g., Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981) (INA 212(c) relief cannot constitutionally be denied to an otherwise eligible alien merely because the alien has not departed from the United States); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976) (granting relief to deportees who had left the country, - 15 16
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But be it strict or intermediate, heightened scrutiny should apply to the classification DOMA 3 creates.17 Yet even were minimal rationality all that is required, DOMA 3 would still deny equal protection.
but not to aliens ordered deported who had remained, denies equal protection clause of the Fifth Amendment because an alien whose ties with this country are so strong that he has never departed should receive at least as much consideration as an individual who may leave.). Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982), held that denying same-sex spouses lawful status need be only minimally rational and that discriminating against samesex spouses is rational. Adams is distinguishable from the instant case and in any event has been so eroded by subsequent precedent that it should no longer be considered good law. First, central to the courts rationale in Adams was legislative history showing that Congress had clearly express[ed] an intent to exclude homosexuals from the United States. 673 F.2d at 1040. In 1990, however, Congress eliminated restrictions against homosexuals admission to the United States. See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990). Thus, Adams involved judicial deference to a [now-reversed] congressional decision to deny immigration preferences to partners in same sex relationships. Flores v. Meese, 942 F.2d 1352, 1364 (9th Cir. 1991) (en banc), revd on other grounds sub nom. Reno v. Flores, 507 U.S. 292; 113 S.Ct. 1439; 123 L.Ed.2d 1 (1993). Second, in Adams the former Immigration and Naturalization Service (INS) had interpreted the term spouse to exclude a person entering a homosexual marriage Id. at 1040 (emphasis added). The court gave substantial deference to the agencys interpretation. Id. Defendants now appear to concede that but for DOMA 3 immigrant members of same sex couples are eligible for immigration benefits. See Matter of Dorman, 25 I. & N. Dec. 485 (Atty. Gen. May 5, 2011) (reversing denial of immigration benefits to immigrant domestic partner with instructions that Board of Immigration Appeals determine, inter alia, whether domestic partnership would qualify for immigrant for immigration benefits in absence of DOMA 3). Third, as Judge Canby concurring and dissenting in part in Witt, supra, points out, Lawrence raises grave doubts about the continuing viability of earlier equal protection decisions holding that discrimination against homosexuals need be only minimally rational. Witt 2, supra, 527 F.3d at 822 & 823 n.3. Time and jurisprudence have now overtaken Adams. To the extent it remains viable, the decision stands for the uncontroversial proposition that CIS may review I-130 petitions for marital bona fides. United States v. Katkhordeh, 477 F.3d 624, 627 (8th Cir. 2007) (Adams simply recogniz[es] that where an alien enter[s] into a sham marriage with an American citizen for purposes of evading the immigration laws of the United States, the alien will not be eligible for benefits accorded to certain married aliens). - 16 17
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The discriminatory scheme DOMA 3 prescribes should be subjected to heightened scrutiny.
DOMA 3 should be subjected to heightened scrutiny on several grounds. First, the statute expressly discriminates on the basis of sex, and DOMA 3 is therefore constitutionally infirm absent proof of an exceedingly persuasive justification for the prescribed discrimination. United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264; 135 L. Ed. 2d 735.18 Second, heightened scrutiny is required because DOMA 3 targets a historically disadvantaged group.19 In Massachusetts v. United States HHS, supra, the First Circuit recently applied heightened scrutiny of DOMA 3 because of the historic patterns of disadvantage
Many cases have held intermediate scrutiny applicable to classifications based on sex. E.g., United States v. Virginia, supra, 518 U.S. 515 (invalidating men-only admission policy of state-supported university); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) (invalidating women-only admission policy of state-supported university); Kirchberg v. Feenstra, 450 U.S. 455, 101 S. Ct. 1195, 67 L. Ed. 2d 428 (1981) (invalidating state law declaring husbands head and master of property owned jointly with their wives); Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) (plurality) (invalidating federal statute presuming spouses of male, but not female, service members dependents). As the U.S. District Court for the Northern District of California recently observed, the contrary holding of High Tech Gays, can no longer be considered authoritative law. See Golinski, supra, 824 F.Supp.2d at 983. As the Golinski court explained, High Tech Gays holding that homosexuals do not constitute a suspect or quasi-suspect class was based entirely on Bowers v. Hardwick, 478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140 (1986), which upheld the criminalization of private consensual homosexual conduct. Id. at 983-984. The Supreme Courts overruling Bowers in Lawrence remov[ed] the precedential underpinnings of the federal case law supporting the defendants' claim that gay persons are not a [suspect or] quasi-suspect class. Pedersen v. Office of Pers. Mgmt., supra, 2012 U.S. Dist. LEXIS 106713 at *45. - 17 19
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suffered by the group adversely affected by the statute: gays and lesbians. 682 F.3d at 11.20 Third, heightened scrutiny is required because, as the First Circuit held in Massachusetts, DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulationdomestic relations and the definition and incidents of lawful marriagewhich is a leading instance of the states exercise of their broad police-power authority over morality and culture. 682 F.3d at 12. Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns. Id. at 13. Finally, heightened scrutiny is applicable because DOMA 3 discriminates against persons guilty of no wrong-doing with respect to matters central to their individual autonomy: sexuality and marriage. A basic constitutional principle is that burdens should bear some relationship to individual responsibility or wrongdoing. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175; 92 S.Ct. 1400; 31 L.Ed.2d 768 (1972).
In High Tech Gays v. Defense Industrial Security Clearance Office, 909 F.2d 375 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc), Judge Canby states the case for applying strict scrutiny to classifications based on sexual orientation with unassailable logic and factual support. Id. at 376-80. Though Judge Canbys view has yet to attain the status of binding precedent in the Ninth Circuit, no extraordinary prescience is required to conclude that it soon will. Plaintiffs accordingly urge the Court to hold heightened scrutiny applicable to the classification DOMA 3 creates. - 18 -
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Where government impinges upon important constitutional rights of innocents, it must have an important reason for doing so. Plyler, supra, 457 U.S. at 216-17. Here there is no question that (1) plaintiffs marriage is wholly lawful and they are otherwise guilty of no wrongdoing; or (2) DOMA 3 intrudes grievously into plaintiffs sex, sexual orientation, and family, all which are matters squarely within the constitutional protection afforded personal autonomy. This Court should accordingly hold heightened scrutiny applicable to DOMA 3. B The justifications for DOMA fail to withstand even rational basis scrutiny.
Because heightened scrutiny applies, only the actual reasons for an enactment, and not hypothetical post hoc justifications ungrounded in legislative history, count. Levenson II, supra, 587 F.3d at 931-33. Plaintiffs have previously shown that the actual reasons underlying DOMA 3 lack a rational basis. The oft-proferred hypothetical justifications fare no better. 1 DOMA 3 does nothing to promote responsible child-rearing.
The first commonplace hypothetical explanation for discrimination such as DOMA 3 mandates is that it promotes responsible procreation and child-rearing. E.g., Perry v. Brown, 671 F.3d 1052, 1106 (9th Cir. 2011). This justification is wholly irrational. [T]he ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country. Gill, supra, 699 F. Supp. 2d at 389. Indeed the sterile and the elderly are allowed to marry. Lawrence, supra, 539 U.S. at 605 (Scalia,
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J., dissenting). Congress has never considered denying recognition to marriage or qualification for an immigration benefit based on a couples inability to procreate. As regards child-rearing, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents. Gill, supra, 699 F. Supp. 2d at 388; accord Perry v. Schwarzenegger, supra, 704 F.Supp.2d at 1002 (by every available metric, opposite-sex couples are not better than their same-sex counterparts, instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.). But even were there some factual basis to conclude children are better off being raised by opposite-sex couples, denying immigrant members of same-sex marriages lawful status would hardly help their children: Protecting a child by deporting his or her parents or relegating them to the undocumented underground is no more rational than cutting off ones nose to spite ones face. Gill, supra, 699 F. Supp. 2d at 389 (denying benefits to same-sex couples prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure).21 In sum, the relationship of the denial of benefits to [child-rearing] is so
Accord, Pedersen v. Office of Pers. Mgmt., supra, 2012 U.S. Dist. LEXIS 106713 at *126 (DOMA, having no impact on the rights afforded to same-sex couples by a variety of states to adopt and rear children, inflicts significant and undeniable harm upon such couples and their children by depriving them of a host of federal marital benefits and protections.) - 20 -
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attenuated as to render the distinction arbitrary or irrational. Levenson II, 587 F.3d at 934; Windsor v. United States, supra, 833 F. Supp. 2d at 404-05 (the Court cannot see a link between DOMA and childrearing. DOMA does not determine who may adopt and raise children. Nor could it, as these matters of family structure and relations belong[] to the laws of the States and not to the laws of the United States.). 2 DOMA is not rationally related to a consistent definition of marriage.
A second commonplace hypothetical justification for DOMA 3 is that it creates a consistent federal definition of marriage. E.g., Levenson II, 587 F.3d at 933. DOMA 3 however does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy. Gill, supra, 699 F. Supp. 2d at 394 (emphasis added).22 Differing state laws on whether same-sex couples may marry cannot possibly burden the federal government because it has no role in implementing those laws. As for administration of federal programs, recognizing valid state marriage licenses is far simpler than turning federal agencies into gender-police. Gender-policing clearly imposes
Marriage requirements, such as age, degree of consanguinity, and means of entering a marriage, have long varied widely from state to state. The federal government has never found such inconsistency a problem except when it comes to marriages of same-sex couples. - 21 -
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greater burdens on the administration of federal programs, not fewer.23 In sum, both actual and hypothetical justifications for DOMA 3 fall far short of justifying the invidious discrimination the statute mandates. Plaintiffs sex and sexual orientation have no conceivable connection to plaintiff DeLeons or Aranass fitness for U.S. residency. Whether subjected to strict, intermediate, or rational basis scrutiny, the reasons for penalizing same-sex couples wither. Plaintiffs have demonstrated a clear probability they will prevail on their claim that DOMA 3 denies equal protection. V THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN PLAINTIFFS FAVOR. There is no question that plaintiffs and those similarly situated have suffered and will suffer irreparable injury should a preliminary injunction not issue. As applied to immigrant spouses, the practical consequences of DOMA 3 are farreaching. In declaring plaintiffs marriage meaningless under the INA, DOMA 3 relegates plaintiffs DeLeon and Aranas to the status of undocumented aliens, with all the disabilities attendant thereto: joblessness or employment without authorization, possible deportation or removal, acquisition of unlawful presence time which bars future admission for ten years, inability to obtain or renew drivers licenses, and the trauma of
Nor did DOMA 3 preserve the status quo between federal and state law regarding marriage; to the contrary, it ended the federal governments traditional deference to the States as regards regulation of marriage. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) ([T]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.). DOMA 3 thus creates inconsistency: a couple can be legally married in their state of domicile but not married under the novel federal law of domestic relations DOMA 3 creates. - 22 -
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living under constant threat of arrest and separation from family. Few punishments are more drastic than expelling persons from this country when their family members are residents. ... Deportation is a drastic measure and at times the equivalent of banishment or exile. Yepes-Prado v. United States INS, 10 F.3d 1363, 1369 n.11 (9th Cir. 1993). Plaintiffs and their proposed class members are suffering and will continue to suffer irreparable injury should this Court not protect them pendente lite. The Government, in contrast, benefits in no appreciable way from having free rein in its discretion to arrest, deport, or deny employment to immigrant spouses and their children, or to treat their ongoing presence as unauthorized, merely because of their or their spouses sex or sexual orientation.24 A preliminary injunction should issue enjoining defendants against instructing immigrants denied lawful status solely as a result of DOMA 3 that they should leave the country. Defendants should further be enjoined against terminating the employment authorization of plaintiffs and those similarly situated, or refusing to grant them
The Government has, in a small number of cases, exercised its prosecutorial discretion to stay adjudication of applications or defer immigrants removal pending a resolution by the courts of DOMAs constitutionality. As explained in detail in plaintiffs Complaint, plaintiff DeLoen was simply informed by defendants that her application for a waiver was denied because of her same sex marriage. See Exhibit 1, p. 2 (Nov. 9, 2011, denial of Motion to Reopen or Reconsider) (waiver denied solely because [b]oth Jane De Leon and her United States citizen spouse are female.) Plaintiff DeLeon was informed that because her waiver application was denied, her application for adjustment of status was also automatically denied, her employment authorization immediately terminated, her temporary authorized status terminated, and if she failed to depart[ ] the United States within six months she would face bars to her future admission. See Exhibit 2, p. 4 (Sept. 1, 2011, Decision). She was also informed that [t]here is no appeal to this decision. Id. - 23 -
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temporary employment authorization and from declaring them unlawfully present, such that they will be barred from entering the United States for up to 10 years pursuant to 8 U.S.C. 1182(a)(9)(B)(i), solely based upon their same sex marriages. As appears in the proposed order lodged concurrently herewith, interim protection may easily be extended to plaintiffs and those similarly situated by defendants. Indeed, defendants routinely grant deferred action status to other immigrants in need of temporary protection pending adjudication of their applications for legal status. See, e.g., 8 C.F.R. 274a.12(c)(14) (aliens granted deferred action may receive employment authorization); Adjudicators Field Manual (AFM) 40.9.2(b)(3)(J) (presence in U.S. with deferred action excluded from time accrued toward three- and ten-year bars to future admission as lawful permanent resident immigrants). As set forth in plaintiffs motion for provisional class certification, by definition plaintiffs and their putative class members are all prima facie eligible for immigration benefits but for DOMA 3. The interim relief plaintiffs propose would not require defendants to adjudicate plaintiffs immigration applications or petitions, or to grant them waivers or adjustment of status. It would entail minimal administrative burdens, requiring only simple and uniform notice regarding the availability of interim relief and extending to plaintiffs and those similarly situated in same-sex marriages the same interim protections it already affords similarly situated immigrants in heterosexual marriages. Defendants would remain free to adjudicate as much or as little of applicants actual
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eligibility for lawful status as they wish. ///
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VI
CONCLUSION For the foregoing reasons, the Court should grant this motion and issue a
preliminary injunction in the form lodged herewith. Dated: August 23, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey _______________ /s/ Carlos R. Holgun_____________ Attorneys for Plaintiffs ///
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EXHIBIT 1
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EXHIBIT 2
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CERTIFICATE OF SERVICE No. SACV12-1137 JVS (MLGx) I hereby certify that on this 23rd day of August, 2012, I electronically filed the foregoing NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system.
/s/ Karena Heredia__________________ Dated: August 22, 2012. ///
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Case 8:12-cv-01137-CBM-AJW Document 12-1
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION Martin R. ARANAS, Irma RODRIGUEZ, and Jane DELEON, Plaintiffs, v. Janet NAPOLITANO, Secretary of the Department of Homeland Security; Alejandro MAYORKAS, Director, United States Citizenship & Immigration Services; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; and DEPARTMENT OF HOMELAND SECURITY, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SACV12-01137 CBM (AJWx) [PROPOSED] PRELIMINARY INJUNCTION.
Hearing: ____________, 2012 Time: 11:00 a.m. Hon. Consuelo B. Marshall
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This matter came on regularly for hearing on the plaintiffs motion for preliminary injunction. The Court has carefully considered the briefs, evidence, and argument in support of and in opposition to plaintiffs motion. For the reasons set forth in the findings of fact and conclusions of law entered concurrently herewith, the Court finds it probable that plaintiffs will succeed on the merits of their claims that 3 of the Defense of Marriage Act, 1 U.S.C. 7, as applied to plaintiffs and those similarly situated denies due process and equal protection of the law in violation of the Fifth Amendment to the United States Constitution, and that plaintiffs and those similarly situated will suffer irreparable injury in the absence of preliminary injunctive relief. The Court further finds that plaintiffs raise serious questions concerning the constitutionality of 3 of the Defense of Marriage Act, 1 U.S.C. 7, as applied to plaintiffs and those similarly, and that the balance of hardships tips sharply in plaintiffs favor. Accordingly, IT IS HEREBY ORDERED that plaintiffs motion is granted and that defendants, their agents and successors-in-office, pending final judgment in this case, are enjoined from 1) removing or detaining plaintiffs DeLeon, Arenas and unnamed members of the plaintiff class;
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2)
denying employment authorization to plaintiffs DeLeon, Arenas and unnamed members of the plaintiff class;
3)
issuing final administrative denials of applications or petitions filed under the Immigration and Nationality Act (INA) solely because the petitioners or applicants lawful spouse is of the same sex;
4)
deeming plaintiffs DeLeon and Arenas and unnamed members of the plaintiff class inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B)(i), where such persons would not have accrued more than six months in unlawful status but for 3 of the Defense of Marriage Act, 1 U.S.C. 7; and
5)
failing to timely provide those in same sex marriages filing applications or petitions under the INA based upon their same sex marriages with notice of this Order.
Dated: ______________, 2012. ______________________________ United States District Judge Presented by: /s/ Peter A. Schey /s/ Carlos R. Holgun Attorneys for plaintiffs
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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 23rd day of August, 2012, I electronically filed the foregoing [PROPOSED] PRELIMINARY INJUNCTION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system.
/s/ Karena Heredia__________________ Dated: August 23, 2012. ///

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

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/s/ Karena Heredia __________________ Dated: August 23, 2012. ///

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V The balance of hardships tips decidedly in plaintiffs favor. ........................... 22 VI Conclusion....................................................................................................... 26

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DOMA must be subjected to heightened scrutiny.

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The discriminatory scheme DOMA 3 prescribes should be subjected to heightened scrutiny.