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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, ) ) ) 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. ________________________________ ) Martin R. ARANAS, Irma RODRIGUEZ, and Jane DELEON, SACV12-01137 CBM (AJWx) OPPOSITION TO DEFENDANTS MOTION TO DISMISS.

Hearing: November 20, 2012 Time: 10:00 am 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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OUTLINE OF CONTENTS I Introduction ............................................................................................................ 1 II Both plaintiffs Rodriguez and Aranas have standing herein................................. 2 A Defendants concede plaintiff DeLeons standing to press plaintiffs instant claims for relief, and it is accordingly unnecessary for the Court to decide whether plaintiffs Rodriguez and Aranas have standing as well ...................................................................................... 4 B A U.S. citizen has standing to challenge defendants refusing to recognize her marriage and denying her lawfully wedded spouse immigration benefits routinely granted heterosexual couples................ 5 C Plaintiff Aranas has standing to challenge defendants refusing to recognize his parents marriage.............................................................. 9 III Plaintiffs state a wholly valid claim that DOMA 3 denies due process............ 13 IV Conclusion ........................................................................................................... 16 TABLE OF AUTHORITIES CASES Ariz. Christian Sch. Tuition Org. v. Winn, _ U.S. _; 131 S. Ct. 1436; 179 L. Ed. 2d 523 (2011) ................................................................................................................ 3 Baker v. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d 663 (1962) .......................... 2 Biggs v. Best, Best & Krieger, 189 F.3d 989 (9th Cir. 1999) ................................ 9, 10 Cerrillo-Perez v. Immigration & Naturalization Service, 809 F.2d 1419 (9th Cir. 1987) ........................................................................................................................ 6 Cleveland Board of Education v. La Fleur, 414 U.S. 632; 94 S. Ct. 791; 39 L. Ed. 2d 52 (1974) ................................................................................................................ 15 Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 ................................................................................................................. 1 Dragovich v. United States Dep't of the Treasury, 115 Fair Empl. Prac. Cas. (BNA) 466; 2012 U.S. Dist. LEXIS 72745, *57-*58 (N.D. Cal. May 24, 2012).............. 13
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Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010), affd sub. nom. Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012) ........................... 8 Graham v. FEMA, 149 F.3d 997 (9th Cir. 1998)......................................................... 3 Horstkoetter v. Department of Public Safety, 159 F.3d 1265 (10th Cir. 1998) ......... 11 In re Golinski, 587 F.3d 901 (9th Cir 2009) ................................................................ 8 In re Levenson, 587 F.3d 925 (9th Cir. 2009)........................................................ 8, 14 Lawrence v. Texas, 539 U.S. 558; 123 S. Ct. 2472; 156 L. Ed. 2d 508 (2003).... 13,15 Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Ca. 2010) ...... 14 Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) ...................................................... 15 Nat'l Ass'n of Optometrists & Opticians LensCrafters v. Brown, 567 F.3d 521 (9th Cir. 2009) ................................................................................................................. 3 Ne. Fla. Chap. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656; 113 S. Ct. 2297; 124 L. Ed. 2d 586 (1993).............................................. 7 Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), cert. denied, 544 U.S. 948 (2005) .................................................................................... 4 Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 646 (9th Cir. 1981).......................................................................................................... 3 Powers v. Ohio, 499 U.S. 400; 111 S. Ct. 1364; 113 L. Ed. 2d 411 (1991) .............. 12 Pub. Citizen v. Dept of Transp., 316 F.3d 1002 (9th Cir. 2003) ................................ 3 Rule 12(b), Fed. R.Civ.Proc. ....................................................................................... 3 Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947; 104 S. Ct. 2839; 81 L. Ed. 2d 786 (1984) .............................................................................................. 12 Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216 (7th Cir. 1994) .......... 7 Turner v. Fouche, 396 U.S. 346; 90 S. Ct. 532; 24 L. Ed. 2d 567 (1970)................... 9 Watt v. Energy Action Educ. Found., 454 U.S. 151; 102 S.Ct. 205; 70 L.Ed.2d 309 (1981) ....................................................................................................................... 3 Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) .......................................... 14

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Witt v. United States Dept of the Air Force, 739 F. Supp. 2d 1308 (W.D. Wa. 2010) ............................................................................................................................... 15 OTHER AUTHORITIES 8 C.F.R. 212.7(a)(1)(ii) ................................................................................................ 6 8 U.S.C. 1182(i)(1) ............................................................................................... 6, 7 ///

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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO DISMISS I INTRODUCTION This is a proposed class 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 members of lawful marriages solely because they are of the same sex. Plaintiffs contend that members of marriages lawful under the law of the state of celebration are entitled to recognition as spouses under the INA regardless of their members sex or sexual orientation. Defendant U.S. Citizenship & Naturalization Services (CIS) does not deny that members of same-sex marriages may indeed qualify as spouses under the INA; it nevertheless declines to recognize them as such pursuant to 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).1 Defendants now move to dismiss plaintiffs Martin Aranas and Irma Rodriguez for lack of standing. They also ask the Court to dismiss plaintiffs claim that as

By notice filed July 25, 2012 (Dkt. 5.), defendants Department of Homeland Security, et al., advised that they agree DOMA 3 unconstitutionally denies equal protection and that they will not defend against plaintiffs equal protection challenge to statute in this proceeding. Defendants nevertheless continue to apply DOMA 3 to deny immigration benefits to same-sex couples and will continue to do so until the judicial branch issues a definitive verdict that DOMA 3 is unconstitutional. Letter from Attorney General Eric H. Holder, Jr., February 23, 2011 (Dkt. 5), at 5.
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applied to plaintiffs and those similarly situated DOMA 3 denies substantive due process. As will be seen, neither defendants challenge to standing nor their challenge to the merits of plaintiffs substantive due process claim withstand analysis. Defendants motion should be denied. II BOTH PLAINTIFFS RODRIGUEZ AND ARANAS HAVE STANDING HEREIN. The question of standing is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant her invocation of federal-court jurisdiction and the exercise of the court's remedial powers on her behalf. Baker v. Carr, 369 U.S. 186, 204; 82 S. Ct. 691; 7 L. Ed. 2d 663 (1962). The irreducible constitutional minimum of standing comprises three elements: First, the plaintiff must have suffered an injury in factan invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained ofthe injury has to be fairly trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Defendants remain wholly committed to defending themselves fully on all questions

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Ariz. Christian Sch. Tuition Org. v. Winn, _ U.S. _; 131 S. Ct. 1436, 1442; 179 L. Ed. 2d 523 (2011) (citations and footnote omitted)). When a litigants standing is placed at issue on a motion to dismiss, courts accept all material allegations in the complaint as true and construe the complaint in favor of the plaintiff. Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir. 1998).2 Finally, the Court need only find that one [plaintiff] has standing to allow a case to proceed. Pub. Citizen v. Dept of Transp., 316 F.3d 1002, 1014-15 (9th Cir. 2003); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160; 102 S.Ct. 205; 70 L.Ed.2d 309 (1981) (because one of three groups of plaintiffs had standing, Court did not consider the standing of the other plaintiffs[]); Nat'l Ass'n of Optometrists & Opticians LensCrafters v. Brown, 567 F.3d 521, 523 (9th Cir. 2009) (As a general rule, in an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing.).

except whether DOMA 3 denies equal protection. In the event defendants press the Court to look beyond the pleadings to resolve the issue of standing, they must do so by way of summary judgment motion and plaintiffs would be afforded an opportunity to conduct discovery. Cf. Rule 12(b), Fed. R.Civ.Proc. (If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.); Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 646 (9th Cir. 1981) ([D]efending partys opportunity to discovery should not be foreclosed by order of the court before the moving party has presented critical factual materials on which he intends to rely and against which a defense is to be mounted.).
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Defendants concede plaintiff DeLeons standing to press plaintiffs instant claims for relief, and it is accordingly unnecessary for the Court to decide whether plaintiffs Rodriguez and Aranas have standing as well.

In Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), cert. denied, 544 U.S. 948 (2005), a doctor who performed abortions and Planned Parenthood, an organization that did not perform abortions, sued to enjoin a state statute restricting access to abortion services. The district court found the physician had standing and accordingly had no need to determine Planned Parenthoods standing as well. 376 F.3d at 918. On appeal, the Ninth Circuit likewise deemed Planned Parenthoods standing immaterial, noting that the organization shares an attorney with [the physician], its presence in the suit poses no threat of enhanced legal fees, and the physician clearly had standing. Id. Here, too, all plaintiffs share attorneys and raise identical claims; the presence of plaintiffs Rodriguez and Aranas poses no threat of enhanced legal fees or other prejudice to defendants; and plaintiff DeLeon has standing. The Courts dedicating its time and resources to deciding Rodriguezs or Aranass standing is accordingly wholly unnecessary at this juncture.3 Yet even

In Wasden the Ninth Circuit noted that on remand, when the district court enters the appropriate injunctive relief against enforcement of the statute, it may need to decide whether Planned Parenthood is a proper plaintiff. Id. at 918 n.6. Such an inquiry may be necessary because [o]nly a proper party to an action can enforce an injunction that results from a final judgment. Id.
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assuming, arguendo, it were necessary to decide plaintiff Rodriguezs and plaintiff Aranass standing now, it is clear they have it. B A U.S. citizen has standing to challenge defendants refusing to recognize her marriage and denying her lawfully wedded spouse immigration benefits routinely granted heterosexual couples.

At the risk of stating the obvious, plaintiff Rodriguez has a palpable interest in her spouses having lawful immigration status. Defendants discriminating against her spouse, plaintiff DeLeon, because of their shared sex or sexual orientation is clearly concrete and particularized, actual, trace[able] to the challenged action of the defendant, and an injury likely to be redressed by a favorable decision. Defendants, of course, dispute none of this; they instead argue (1) that because plaintiff Rodriguez did not file the I-601 waiver, and cannot allege that the Government has threatened to remove her, she does not have standing to challenge defendants declaring her marriage null pursuant to DOMA 3; and (2) that should Ms. DeLeon prevail in her action challenging Section 3 of DOMA which she shouldany impact of Section 3 of DOMA on Ms. Rodriguez will be eliminated. Dkt. 46-1 at 8. To answer defendants first argument, it is obviously true that under CISs regulations it is the intending immigrant who must seek and obtain a waiver of inadmissibility. 8 C.F.R. 212.7(a)(1)(ii). However, the plain raison d'tre for such

Here, of course, we are a long way from deciding whom may enforce injunctive relief striking down DOMA 3; as in Wasden it is entirely appropriate to reserve that question for a time when it should prove necessary to decide.
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waivers is precisely to ameliorate hardship on U.S. citizens when their spouses are refused admission: The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse of a United States citizen if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen spouse. 8 U.S.C. 1182(i)(1) (emphasis added). In enacting 1182(i) Congress was visibly unconcerned with the impact excluding an immigrant spouse would have on the immigrant him- or herself. Its goal was to save U.S. citizens from extreme hardship. This is, of course, consistent with the general tenor of the INA. [T]he legislative history of the Immigration and Nationality Act clearly indicates that the Congress was concerned with the problem of keeping families of United States citizens and immigrants united. Cerrillo-Perez v. Immigration & Naturalization Service, 809 F.2d 1419, 1423 (9th Cir. 1987), quoting H.R. Rep. No. 1199, 85th Cong., 1st Sess. 7, reprinted in 1957 U.S. CODE, CONG. & ADMIN. NEWS 2016, 2020; see also In re Velarde-Pacheco, 23 I. & N. Dec. 253, 265 (BIA 2002) (Espinoza, concurring) (A fundamental interest in our immigration laws is the preservation of the rights of United States citizens to process immigration visas for designated members of their families.). Of course, the injuries plaintiff Rodriquez has suffered as a result of the
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unequal treatment of her lawful marriage by defendants include (i) denying her spouse the right to work, (ii) placing her spouse into unlawful status, and (iii) eviscerating the benefits Congress sought to extend to her and other similarly situated US citizens in 8 U.S.C. 1182(i)(1). Further, Ms. Rodriguez sues because defendants have clearly treated her marriage as inferior. This denial of equal treatment gives her standing herein: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The "injury in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Ne. Fla. Chap. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666; 113 S. Ct. 2297; 124 L. Ed. 2d 586 (1993); see also Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994) (denial of equal protection itself an injury that confers standing). In Revelis v. Napolitano, 844 F.Supp.2d 915 (N.D. Ill. 2012), the plaintiffs, a same-sex couple who married in Iowa, filed suit challenging the constitutionality of DOMA 3. Id. at 918. The plaintiff Revelis was a United States citizen. Id. Although CIS had yet to deny the couples application for marriage-based immigration benefits, the court held the immigrant and U.S. citizen spouse had
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standing: [T]he injury that Plaintiffs allege is broader than the expected denial of the petition. They contend that because of DOMA, they will not be treated like any other couple. There is a thumb on the scale against them, and even if they are otherwise qualified, it is a practical certainty that Revelis' petition will be denied. This is a government-imposed barrier to obtaining a benefit available to other legally married couples, and it confers standing upon Plaintiffs. 844 F. Supp. 2d at 922 (citation omitted). Courts have routinely allowed both members of lawfully married couples to challenge DOMA 3. E.g., Revelis, supra, 844 F. Supp. 2d at 920-23 (upholding same-sex bi-national couples standing to challenge DOMA 3 because [t]here can be no question that both [spouses] have a valuable right at stake in the marriage petition process); In re Golinski, 587 F.3d 901 (9th Cir 2009) (finding for federal employee who challenged DOMA 3 to obtain health care for same-sex spouse); In re Levenson, 587 F.3d 925 (9th Cir. 2009) (same); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 376 (D. Mass. 2010), affd sub. nom. Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012) (entertaining challenge to DOMA 3 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.). As a U.S. citizen, plaintiff Rodriguez has at least as much right as her immigrant spouse to sue her government for equal treatment, to have her marriage considered "without the burden of invidiously discriminatory disqualifications."
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Turner v. Fouche, 396 U.S. 346, 362; 90 S. Ct. 532; 24 L. Ed. 2d 567 (1970).4 DOMA 3 denies equal treatment for her marriage, and Ms. Rodriguez accordingly has standing to challenge that discrimination.5 C Plaintiff Aranas has standing to challenge defendants refusing to recognize his parents marriage.

As alleged in plaintiffs complaint, Martin Aranas would now be a lawful permanent resident as a derivative beneficiary of his mothers petition for lawful status were it not for DOMA 3. Complaint (Dkt. 1) at 38. When CIS denied plaintiff DeLeons application for lawful status pursuant to DOMA 3, it accordingly denied plaintiff Aranas lawful status as well. Id. at 39. Defendants dispute none of this, but nevertheless challenge plaintiff Aranass

Nor is there any merit to defendants suggestion that Ms. Rodriguez should be dismissed because her standing is somehow duplicative of Ms. DeLeons. First, her standing is not duplicative. Ms. Rodriguez, after all, is a U.S. citizen, and as has been seen, the INA is structured more for her benefit than it is for Ms. DeLeons.
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Even if plaintiff Rodriquezs injuries were deemed indirect, courts routinely uphold the standing of persons indirectly injured by a challenged activity when they raise claims identical to those of persons injured directly. See, e.g., Biggs v. Best, Best & Krieger, supra, 189 F.3d 989, 998-99 (9th Cir. 1999) (husband and daughter of city attorney have standing to raise, derivatively, the same loss of salary claim as city attorney challenging disciplinary action on First Amendment grounds). Defendants offer no authority for their notion that parties should be dismissed on the ground their standing is duplicative. Defendants finally argue that in the immigration context, an individual [U.S. citizen] does not have standing based solely on alleged harm to his or her spouse. Dkt. 46-1 at 8, citing Bright v. Parra, 919 F.2d 31, 33 (5th Cir. 1990). However, nowhere in its decision did the Court of Appeals in Bright indicate or even imply that the U.S. citizen plaintiffs suing with their immigrant spouses did not have standing. Indeed, the lower court and Court of Appeals adjudicated their claims indicating that these plaintiffs were believed to have standing.
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standing on the grounds that CISs applying DOMA 3 against his mother has not harmed him directly. Dkt. 46-1 at 7. Plaintiffs disagree. First, plaintiff Aranas faces a direct injury. As defendants understand, Aranass claim is that Section 3 of DOMA has injured him by leaving him without valid immigration status. Id. Plaintiff Aranas has a statutory right to legalize his status when his mothers status is legalized. Defendants adhering to DOMA blocks approval of his mothers application and this makes plaintiff Aranas ineligible for adjustment of status. He has (i) suffered a direct injury to his legally protected interest in adjustment of status which is concrete and not conjectural or hypothetical in any sense, (ii) there is a causal connection between the injury and the enforcement of DOMA 3 (i.e. the injury is fairly trace[able] to the challenged action of the defendant), and (iii) it is likely, as opposed to merely speculative, that the injury may be redressed by a favorable decision in this case. Ariz. Christian Sch. Tuition Org. v. Winn, supra, 131 S. Ct. at 1442. Plaintiff Aranas also suffers indirect injuries as a result of defendants enforcement of DOMA 3. In Biggs v. Best, Best & Krieger, supra, a city councilman threatened to fire the city attorney unless her "family was silenced in Redlands community politics." 189 F.3d at 992. The city attorney, her husband, and her daughter all brought suit against the city council. The Ninth Circuit held that the husband and daughter had standing to raise derivatively the city attorneys claims against the council: The sanctions threatened by the council defendants would affect only Julie
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Biggs directly, not Jerry or Holly Biggs. [T]he only damage to Jerry and Holly Biggs was the indirect harm that would result from the loss of Julie Biggs' income. Although the loss of Julie Biggs' salary is not insubstantial, we hold that it is only sufficient to confer standing on Jerry and Holly Biggs to assert the same claims brought by Julie Biggs. By limiting the claims that Jerry and Holly Biggs may assert to those raised by Julie Biggs, any speculative aspect of their injury is eliminated. Id. at 998 (emphasis added).6 Defendants argument against plaintiff Aranass standing is a weaker variant of that rejected in Biggs. Here, plaintiff Aranas is a member of a family, and all members of that family are concretely injured by defendants having applied DOMA 3 against plaintiff DeLeon. CISs denying plaintiff DeLeon lawful status precludes her from working lawfully to support her family. Complaint (Dkt. 1) at 37. The economic injury this causes is identical to that the Ninth Circuit held sufficient to confer derivative standing on the city attorneys family members in Biggs.

Similarly in Horstkoetter v. Department of Public Safety, 159 F.3d 1265 (10th Cir. 1998), a state trooper's wife challenged the Department of Public Safetys policy prohibiting troopers from placing a yard sign in front of their house. The Court held that the wife had standing to raise the same claim as her husband. Though the policy applied only to troopers and there was no possibility of disciplinary action against troopers spouses, the Court held that indirect economic injury to spouses constitutes injury in fact sufficient to confer standing. The plaintiff wife was "without question, indirectly injured by the application of the policy to [her] husband[], because [he was] faced with a loss of income which would have affected the entire family." 159 F.3d at 1279.
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7

There are no authorities directing this Court to find that plaintiff Aranas does not possess standing to seek redress for the injury DOMA 3 inflicts on him in particular and on his family in general.7 The composition of plaintiff Aranass family is plainly a matter relating to marriage, procreation, family relationships, [and] child rearing Lawrence v. Texas, 539 U.S. 558, 574; 123 S. Ct. 2472; 156 L. Ed. 2d 508 (2003). It is no less an aspect of his personal and private life, id. at 578,

Defendants authorities are largely boilerplate and simply not to the contrary.

In Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947; 104 S. Ct. 2839; 81 L. Ed. 2d 786 (1984), a professional for-profit fundraiser challenged a municipal ordinance prohibiting the solicitation of contributions by a charitable organization that did not use at least 75 percent of its receipts for charitable purposes. 467 U.S. at 949. The Secretary argued that Munson is not a charity and does not claim that its own First Amendment rights have been or will be infringed by the challenged statute. Id. at 955. The Court disagreed, holding both that Munson has suffered both threatened and actual injury as a result of the statute, id. at 954-55, and that there was no prudential reason not to allow [Munson] to challenge the statute. Id. at 958. Nothing in the Courts decision in Munson suggests that plaintiff Aranas does not have standing in this case. Defendants cite Powers v. Ohio, 499 U.S. 400; 111 S. Ct. 1364; 113 L. Ed. 2d 411 (1991), for the proposition that [a] litigant may only assert the constitutional rights of an absent third party if there is some hindrance to the third partys ability to protect his or her own interests and there is a close relation between the litigant and third party. Dkt. 46-1 at 7. In Powers the petitioner, a white man, was indicted for murder. During jury selection the prosecutor exercised peremptory challenges to remove black venirepersons. 499 U.S. at 402. The defendant challenged his conviction, contending that the prosecutor's discriminatory use of peremptories violated the Sixth Amendment's guarantee of a fair jury and the Fourteenth Amendment's Equal Protection Clause. Id. at 403. The Court held that a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race even when the defendant is of a different race from the excluded jurors. Id. at 415. Neither decision offers support for defendants overly general propositions regarding standing.
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than it is of his parents. He is no less a victim of unconstitutional discrimination than are his parents. III PLAINTIFFS STATE A WHOLLY VALID CLAIM THAT DOMA 3 DENIES DUE
PROCESS.

Moving from standing to substance, defendants next challenge plaintiffs second claim for reliefthat DOMA 3 denies substantive due processon the ground that Plaintiffs do not possess a fundamental right to immigration benefits. Dkt. 46-1 at 9.8 Again, defendants simply misconstrue plaintiffs claim. Plaintiffs do not contend that Ms. DeLeon has a constitutional right to immigration benefits. Plaintiffs do contend they are entitled to respect for their private lives, Lawrence, supra, 539 U.S. at 578; that the federal government cannot demean their existence or control their destiny by penalizing them for their sexual orientation, id.; that DOMA 3 furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual, id.; that they have a due process right to demand respect for conduct protected by the substantive guarantee of liberty; id. at 575; and that they are entitled to autonomy in their personal decisions relating to marriage, procreation, family relationships, [and] child rearing Id. at 574.

Since defendants concede plaintiffs have stated a viable equal protection claim, there is little apparent need to decide whether DOMA 3 also denies substantive due process. See, e.g., Dragovich v. United States Dep't of the Treasury, 115 Fair Empl. Prac. Cas. (BNA) 466; 2012 U.S. Dist. LEXIS 72745, *57-*58 (N.D. Cal. May 24, 2012) (The Court need not address Plaintiffs' substantive due process challenge to
8

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In Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008), the Ninth Circuit struck down penalties imposed on a service women on account of her sexual orientation. Congresss dont ask, dont tell (DADT) policy barred known gays and lesbians from serving in the armed forces, and the Air Force accordingly suspended Major Margaret Witt from duty when it discovered she had been in a long-term relationship with another woman. Id. at 809. The court held that the DADT policy penalized Major Witt for her sexual orientation.9 In order justify that penalty, the court held, the Government must demonstrate (1) that it has an important interest for imposing penalties on the basis of sexual orientation; (2) that the penalty significantly furthers the governments interest; and (3) that the penalty must be necessary: that is, a less intrusive means

the disputed provisions because Plaintiffs prevail on their motion for summary judgment with respect to their equal protection challenge.). See also Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 965 (C.D. Ca. 2010), vacated as moot Log Cabin Republicans v. United States, 658 F.3d 1162, 1165 (9th Cir. 2011) (dismissed as moot after Congress repealed 10 U.S.C. 654 (Dont Ask Dont Tell policy) (Careful review and consideration of the Act itself and its legislative history reveals that this evidence fails to satisfy Defendants' burden of proving that the Act, with its attendant infringements on the fundamental rights of Plaintiff's members, significantly furthers the Government's interest in military readiness or unit cohesion); In re Levenson, 587 F.3d 925; 2009 U.S. App. LEXIS 25301; 108 Fair Empl. Prac. Cas. (BNA) 331 (9th Cir. 2009) (Judge Reinhardt) (a decision denying Levenson's request that federal benefits be extended to his same-sex spouse would have no rational basis. In sum, to the extent that the application of DOMA serves to preclude the provision of health insurance coverage to a same-sex spouse of a legally married federal employee because of the employee's and his or her spouse's sex or sexual orientation, DOMA, as applied, contravenes the Fifth Amendment to the United States Constitution and is therefore unconstitutional).
9

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must be unlikely to achieve substantially the governments interest. Id. at 819.10 In Witt there was no claim that Major Witt had a substantive due process right to earn points toward promotion and retirement benefits, or even to remain in the military. Id. at 810. These were penalties the government imposed on Major Witt on account of her sexual orientation. These penalties violated Major Witts substantive due process right to make certain decisions regarding sexual conduct 527 F.3d at 813, quoting Lawrence, 539 U.S. at 565.11 Likewise here, plaintiff DeLeon need demonstrate no constitutional right to immigration benefits.12 Her claim is that she may not be denied such benefits solely

On remand, the district court found that the evidence overwhelmingly supports the conclusion that the suspension and 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). Application of DADT therefore violates Major Witts substantive due process rights under the Fifth Amendment to the United States Constitution. Id.
10

Similarly in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 648; 94 S. Ct. 791; 39 L. Ed. 2d 52 (1974), the Court held that a state may not penalize the pregnant teacher for deciding to bear a child, by imposing overly restrictive maternity leave regulations [that] constitute a heavy burden on the exercise of these protected freedoms. There is no mention of a substantive due process right to freedom from restrictive maternity leave regulations. Rather, the Court invalidated the challenged regulations because they penalized the plaintiffs exercise of her substantive due process right to decide to bear a child. 414 U.S. at 640.
11

Defendants reliance on Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003), is also badly misplaced. Dkt. 46-1 at 9 (the denial of a discretionary immigration benefit cannot violate a substantive liberty or property interest purportedly protected by the Due Process Clause.).
12

Munoz, whose mother had unlawfully brought him into the United States as an infant, grew up in the United States, went to school here, graduated from high school, and generally established the customary roots and friendships. 339 F.3d at 953. Munoz argued that he had thus acquired a substantive due process right to
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on account of personal matters that are unquestionably within the substantive guarantee of liberty the Constitution extends to one and all. IV CONCLUSION For the foregoing reasons, defendants motion to dismiss should be denied. Dated: October 15, 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 ///

remain in the United States. Id. at 954 (Munoz contends that because he has resided in the United States virtually his entire life ... that he has acquired a substantive due process right to stay in the United States ...). Not surprisingly, the court held Munoz had no substantive due process right to stay in the United States. Id. Here, of course, plaintiff DeLeons claims are not based on an asserted right to remain in the United States. Rather, plaintiffs assert their due process right to demand respect for conduct [in this case, marriage and personal choices in family matters and sexual orientation] protected by the substantive guarantee of liberty. Lawrence, 539 U.S. at 575.
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Certificate of Service SACV12-01137 CBM (AJWX) I hereby certify that on this 15th day of October, 2012, I electronically filed the foregoing OPPOSITION TO MOTION TO DISMISS 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. Dated: October 15, 2012 /// /s/ __Carlos Holguin__________

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