1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO


ADA M. CONDE-VIDAL, et al.

Plaintiffs

v.

DR. ANA RIUS-ARMENDARIZ, et al.

Defendants




CIVIL NO. 14-1253 (PG)




MOTION SUBMITTING
REPLY TO OPPOSITION TO MOTION TO DISMISS
PURSUANT TO FED.R.CIV.P. 12(B)(6)

TO THE HONORABLE COURT:
COME NOW, defendants Hon. Alejandro Garca Padilla, Ana Rius Armendariz, Melba Acosta
Febo, and Wanda Llovet Daz, in their official capacity, without submitting to this Honorable Courts
Jurisdiction, and through the undersigned attorney, respectfully allege and pray as follows:
1. On September 25
th
, 2014, the appearing defendants requested the Honorable Court Leave
to file Reply to Plaintiffs Opposition to Motion to Dismiss and an extension of time until this date in
order to file said Reply.
2. The Court has not expressed itself as to the above mentioned request to this date.
Therefore, the appearing defendants file tendered on this motion their Reply to Plaintiffs Opposition to
Motion to Dismiss.
3. The appearing defendants respectfully request the Court to note the above mentioned and
to grant the Leave to file the tendered Reply and Extension of time to file as requested.
WHEREFORE, it is respectfully requested that this Honorable Court notes the above
Case 3:14-cv-01253-PG Document 53 Filed 10/10/14 Page 1 of 2
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mentioned and grants the Leave to file the tendered Reply and Extension of time to file as requested.
I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which will send an electronic copy to all attorneys to their
address of record.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico, this 10
th
day of October 2014.

CESAR MIRANDA RODRIGUEZ
Secretary of Justice

MARTA ELISA GONZALEZ Y.
Deputy Secretary
In Charge of Civil Matters

JANITZA M. GARCIA MARRERO
U.S.D.C.-P.R. Bar No. 222603
Federal Litigation Division
jgarcia@justicia.pr.gov
S/ Idza Daz Rivera
IDZA DIAZ RIVERA
U.S.D.C. NO. 223404
idiaz@justicia.pr.gov

S/ Maraliz Vazquez Marrero
MARALIZ VAZQUEZ MARRERO
U.S.D.C. NO. 225504
Federal Litigation Division
Department of Justice
P.O. Box 9020192
San Juan, P.R., 00902-0192.
Tel. (787) 721-2900, Ext. 2606
Fax (787) 723-9188
marvazquez@justicia.pr.gov


Case 3:14-cv-01253-PG Document 53 Filed 10/10/14 Page 2 of 2
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO


ADA M. CONDE-VIDAL, et al.

Plaintiffs

v.

DR. ANA RIUS-ARMENDARIZ, et al.

Defendants




CIVIL NO. 14-1253 (PG)




REPLY TO OPPOSITION TO MOTION TO DISMISS
PURSUANT TO FED.R.CIV.P. 12(B)(6)

TO THE HONORABLE COURT:
COME NOW, defendants Hon. Alejandro Garca Padilla, Ana Rius Armendariz, Melba Acosta
Febo, and Wanda Llovet Daz, in their official capacity, without submitting to this Honorable Courts
Jurisdiction, and through the undersigned attorney, respectfully allege and pray as follows:
INTRODUCTION
On September 15
th
, 2014, Plaintiffs filed a Memorandum in Opposition to Defendants Motion
to Dismiss. Plaintiffs discuss several matters, several of which will be attended by the defendants in the
instant reply.
BAKER
1
IS PRECEDENT IN THIS JURISDICTION
Plaintiffs, in their opposition to Defendants motion to dismiss, argue that Defendants
argument [i.e. in light of Baker, neither the equal protection clause nor the due process clause are
offended by statutes limiting the right to marry to a man and a woman,]
2
has been rejected by every

1 409 U.S. 810, 93 S.Ct. 38, 34 L.Ed.2d 65 (1972).
2 See, Plaintiffs Memorandum in Opposition to Defendants Motion to Dismiss, page 12.
Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 1 of 5
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federal court to consider it since Windsor, because Baker was decided in 1972-42 years ago and the
dark ages so far as litigation over discrimination against homosexuals in concerned. (citing Baskin v.
Bogan, No. 14-2386, 2014 U.S. App. LEXIS 17294, at *35 (7th Cir. Sept. 4, 2014) (Posner, J.). This
may be the case for the Seventh Circuit, but it is the United States Court of Appeals for the First Circuit
the one that establishes precedent in the District of Puerto Rico, and not the Seventh Circuit. Decisions
from the Seventh Circuit may be used to persuade the Court in this District, but not be cited as
establishing precedent.
Plaintiffs allege in their opposition that although the First Circuit stated in Massachusetts v.
United States Department of Health and Human Services that Baker limit[s] the arguments to ones
that do not presume or rest on a constitutional right to same-sex marriage, 682 F.3d 1, 8 (1
st
Cir. 2012),
that statement was not essential to the determination of the legal questions then before the court,
whether Section 3 of DOMA was unconstitutional and therefore constitutes dicta.
3
This is not,
however, the totality of the expressions of the Court in said case. A complete record is necessary to
objectively apply the Courts determination to the instant case. As such, the Court stated:
Baker is precedent binding on us unless repudiated by subsequent Supreme
Court precedent. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d
223 (1975). Following Baker, gay rights claims prevailed in several well known
decisions, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996),
but neither mandates that the Constitution requires states to permit same-sex
marriages. A Supreme Court summary dismissal prevent[s] lower courts from
coming to opposite conclusions on the precise issues presented and necessarily
decided by those actions. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53
L.ED.2d 199 (1977)(per curiam). Baker does not resolve our own case, but it does
limit the arguments to ones that do not presume or rest on a constitutional right to
same-sex marriage. Massachusetts, 682 F.3d at 8.

The First Circuit is clear, the decision of the Supreme Court in Baker is binding unless it is

3 Id., at page 14-15.
Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 2 of 5
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revoked by a later Supreme Court decision on this matter, which has not happened to this date.
Moreover, the Supreme Court rejected an opportunity to revoke Baker as recent as this week and
declined said opportunity.
4
Therefore, Baker is the case to look at for the law of the instant case.
PLAINTIFFS CLAIMS MUST BE ADDRESSED APPLYING A RATIONAL BASIS
STANDARD

Plaintiffs claim that the instant case must be evaluated using the strict scrutiny, since the
discrimination they claim creates a suspect class. Once again, the First Circuit disagrees.
The First Circuit in Massachusetts, 682 F.3d at 8-10, added:
Certain suspect classifications-race, alienage and national origin- require what
the Court calls strict scrutiny, which entails both a compelling governmental interest
and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115
S.Ct. 2097, 132 L.Ed.2d 158 (1995). Gender-based classifications invoke
intermediate scrutiny and must be substantially related to achieving an important
governmental objective. Both are far more demanding than rational basis review as
conventionally applied in routine matters of commercial, tax and like regulation.

Equal protection claims tested by this rational basis standard, famously called
by Justice Holmes the last resort of constitutional argument, Buck v. Bell, 274 U.S.
200, 208, 47 S.Ct. 584, 71 L.Ed.1000 (1927), rarely succeed. Courts accept as
adequate any plausible factual basis, Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483, 487-88, 75 S.Ct. 461, 99 L.Ed. 563 (1955), without regard to
Congress actual motives. Beach Commcns, 508 U.S. at 314, 113 S.Ct. 2096. Means
need not to be narrowly drawn to meet-or even be entirely consistent with-the stated
legislative ends. Lee Optical, 348 U.S. at 487-88, 75 S.Ct. 461.

But extending intermediate scrutiny to sexual preference classification is
not a step open to us.

First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir.2008), cert. denied, 556
U.S. 1289, 129 S.Ct. 2763, 174 L.Ed.2d 284 (2009), has already declined to create a
major new category of suspect classification for statutes distinguishing based on
sexual preference. Cook rejected an equal protection challenge to the now-superceded
Don't Ask, Don't Tell policy adopted by Congress for the military, pointing out that
Romer itself avoided the suspect classification label. Cook, 528 F.3d at 6162. This
binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.2010).

4 On October 6, 2014, The U.S. Supreme Court refused to hear appeals from five states -- Indiana, Oklahoma, Utah,
Virginia and Wisconsin -- seeking to keep their same-sex marriage bans in place.
Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 3 of 5
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Second, to create such a new suspect classification for same-sex relationships
would have far-reaching implicationsin particular, by implying an overruling of
Baker, which we are neither empowered to do nor willing to predict. Nothing
indicates that the Supreme Court is about to adopt this new suspect classification
when it conspicuously failed to do so in Romera case that could readily have been
disposed by such a demarche. That such a classification could overturn marriage laws
in a huge majority of individual states underscores the implications.

From this decision from the First Circuit, it is to be concluded that the instant case is to be
evaluated using the rational basis, instead of the strict scrutiny suggested by plaintiffs.
MARRIAGE IS FOR STATES TO DEFINE
In Windsor, 133 S.Ct. at 2691, the Supreme Court expressed:
The recognition of civil marriages is central to state domestic relations law
applicable to its residents and citizens. See Williams v. North Carolina, 317 U.S.
287, 298 (1942)(each state as a sovereign has a rightful and legitimate concern in
the marital status of persons domiciled within its borders). The definition of
marriage is the foundation of the States broader authority to regulate the subject of
domestic relations with respect to the [p]rotection of offspring, property interests,
and the enforcement of marital responsibilities. Ibid. [T]he states, at the time of the
adoption of the Constitution, possessed full power over the subject of marriage and
divorce [and] the Constitution delegated no authority to the Government of the
United States on the subject of marriage and divorce. Haddock v. Haddock, 201
U.S. 562, 525 (1890)(The 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).

Justice Kennedy further instructs:
The significance of state responsibilities for the definition and regulation of
marriage dates to the Nations beginning; for when the Constitution was adopted the
common understanding was that the domestic relations of husband and wife and
parent and child were matters reserved for the States. Ohio ex rel. Popovici v.
Angler, 280 U.S. 379, 383-384 (1930). Marriage laws vary in some respects from
State to State. Id.

Finally, he emphasizes why:
The responsibility of the States for the regulation of domestic relations is an
important indicator of the substantial societal impact the States classifications have
in the daily lives and customs of its people. Id. at 2693.
Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 4 of 5
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CONCLUSION

The Supreme Court in Windsor, and the First Circuit in Massachusetts are clear insofar as the
law applicable in this case, as argued by the defendants both in their Motion to Dismiss and in their
Reply to Opposition to Motion to Dismiss. Therefore, the appearing defendants respectfully request the
Honorable Court to DISMISS WITH PREJUDICE the instant case.
WHEREFORE, it is respectfully requested from this Honorable Court grant Defendants
Motion to Dismiss and to DISMISS WITH PREJUDICE the instant case.
I HEREBY CERTIFY that on this same date, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which will send an electronic copy to all attorneys to their
address of record.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico, this 10
th
day of October 2014.

CESAR MIRANDA RODRIGUEZ
Secretary of Justice

MARTA ELISA GONZALEZ Y.
Deputy Secretary
In Charge of Civil Matters

JANITZA M. GARCIA MARRERO
U.S.D.C.-P.R. Bar No. 222603
Federal Litigation Division
jgarcia@justicia.pr.gov
S/ Idza Daz Rivera
IDZA DIAZ RIVERA
U.S.D.C. NO. 223404
idiaz@justicia.pr.gov

S/ Maraliz Vazquez Marrero
MARALIZ VAZQUEZ MARRERO
U.S.D.C. NO. 225504
Federal Litigation Division
Department of Justice
P.O. Box 9020192
San Juan, P.R., 00902-0192.
Tel. (787) 721-2900, Ext. 2606
Fax (787) 723-9188
marvazquez@justicia.pr.gov


Case 3:14-cv-01253-PG Document 53-1 Filed 10/10/14 Page 5 of 5