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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant.
Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Michael F. Murphy (P29213) Attorneys for Defendant Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Amanda C. Goad American Civil Liberties Union Foundation Attorney for Plaintiffs
1313 West 8th Street

No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO MOTION FOR SUMMARY JUDGMENT

Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5273 John A. Knight American Civil Liberties Union of IL Attorney for Plaintiffs 180 N. Michigan Ave, Ste. 2300 Chicago, IL 60601 (312) 201-9740

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ARGUMENT I. Michigan Public Act 297 of 2011 (P.A. 297) does not impermissibly discriminate against Plaintiffs and is rationally related to a legitimate State interest. Contrary to the assertions of Plaintiffs, the narrow restriction of the Act (P.A. 297) does not demonstrate any intentional focus upon same-sex domestic partners or any other type of live-in arrangement. Because some classifications are incorporated from other laws, such as the Michigan Constitution defining marriage and definitions from the intestacy statute, that does not in and of itself make the statute facially discriminatory and render it unconstitutional. Erie County Retirees Assn v. County of Erie, PA, 220 F.3d 193 (3d Cir. 2000) involved a situation where the classification at issue incorporated a Medicare eligibility requirement which when reviewed could only mean an inappropriate age-based classification since Medicare was strictly age based 65. Erie is unlike P.A. 297, which is not strictly sexually oriented in its classifications. Significantly, the recent decision in DeBoer v. Snyder, U.S.D.C. E.D. Mich. Case No. 12-cv-10285 demonstrates the validity of P.A. 297. Michigans Marriage Amendment, Mich. Const. 1963, art. 1, 25 has been declared unconstitutional by the DeBoer Court. (Doc. # 151,
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Findings of Facts and Conclusions of Law, I.D. # 3973, March 21, 2014.) Yet, this ruling affirms the validity of P.A. 297, the purpose of which is to provide special status for marriage and family relationships. If the DeBoer decision is affirmed through the appellate process, Plaintiffs equal protection claim based on sexual orientation and discriminatory animus is moot. If reversed, the statute may be affirmed as rationally related to the States legitimate purpose in supporting marriage and family relationships. Although the U.S. Sixth Circuit Court of Appeals has temporarily stayed the DeBoer decision, (Ex. 13, Order Granting Temporary Stay), the Court should hold this case in abeyance pending the conclusion of the appellate process to avoid these important justiciability issues. The Plaintiffs would not be harmed because the preliminary injunction currently in place enjoins enforcement of P.A. 297. (Doc. # 75, Opinion and Order, I.D. # 3087.) II. Closer or heightened scrutiny is not applicable to Plaintiffs Equal Protection Claim. Defendants do not concede that heightened scrutiny is available or applicable to the equal protection review of P.A. 297. Plaintiffs recognize the Court must examine this claim under the rational basis
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standard and present an argument for heightened scrutiny only to preserve it for appeal, if necessary. While the Court agrees the applicable equal protection standard identified by the Sixth Circuit Court Appeals should be reexamined, it recognizes it is constrained by that precedent which requires P.A. 297 be measured under rational basis review. (Doc. # 75, Opinion and Order, I.D. 3066.) Defendants reserve their argument on this issue for appeal, should it be necessary. III. Fiscal Responsibility of Local Government Units is a sufficient rational basis to uphold P.A. 297. Plaintiffs argue that the fiscal justification for P.A. 297 is merely pretextual and has only a negligible effect on public spending by local units of government. (Doc. # 97, I.D. #4704). They do note and admit that some savings are to be found based upon the Act and it is the amount of those savings which leads to the conclusion that the classifications of the Act are constitutionally deficient. In essence, Plaintiffs argue that they will define miniscule savings and then the Court must substitute its judgment for that of the Legislature in how best to rationally review the effect of those savings. In citing Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), to support the contention that a small savings can be used to show lack of a rational basis for a statute,
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Plaintiffs argue the small savings coupled with distinguishing between homosexual and heterosexual employees similarly situated, can support a holding that such a distinction cannot constitutionally survive. In this case, Plaintiffs admit savings have been achieved. The Legislature in their judgment believes these savings in combination with the other local government fiscal and economic reforms enacted to be sufficient and rationally related to the States purpose of fiscal management. For the Court to substitute its judgment for the judgment of the Legislature and to quantify the savings obtained as part of some further rigorous scrutiny, as required by Diaz, is akin to the heightened scrutiny already rejected by this Court and the Sixth Circuit. Because Diaz requires rigorous scrutiny in analyzing state cost-savings claims, it is merely heightened scrutiny in different clothing. See Ariz Dream Act Coalition v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013). Thus, Diaz does not comport with Sixth Circuit analysis in this instance. Diaz does not justify the Courts substituting its judgment and effectively a heighted scrutiny not recognized in this Circuit, for the judgment of the Michigan Legislature in this case. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Given

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the States wide latitude in adopting social and economic legislation and the justification posited in this case, P.A. 297 passes constitutional muster. CONCLUSION AND RELIEF REQUESTED Based upon the Motion for Summary Judgment filed, Defendant Governor is entitled to Summary Judgment under Fed. R. Civ. P. 56 and should be entered accordingly. Respectfully submitted, BILL SCHUETTE Attorney General s/Margaret A. Nelson Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Attorneys for Defendant Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Email: NelsonM9@michigan.gov

Dated: March 24, 2014

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PROOF OF SERVICE (E-FILE) I hereby certify that on March 24, 2014, I electronically filed the foregoing document(s) with the Clerk of the Court using the ECF System, which will provide electronic notice and copies of such filing to the parties of record. s/Margaret A. Nelson Margaret A. Nelson (P30342) Attorney for Defendant Michigan Department of Attorney General Public Employment, Elections & Tort Div. P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

2012-0001512-A

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant. No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK

INDEX OF EXHIBIT OT DEFENDANTS REPLY TO PALINTIFFS RESPONSE TO MOTION FOR SUMMARY JUDGMENT Ex. 13 DeBoer - Order Granting Temporary Stay

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EXHIBIT 13

2:12-cv-10038-DML-MJH Case: 14-1341 Document: Doc # 98-211-2 Filed 03/24/14 Filed: 03/22/2014 Pg 2 of 2 Page: Pg ID 14734