United States District Court Northern District of California San Francisco Division

Case3:10-cv-00257-JSW Document150
Filed07/15/11 Page1 of 40
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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) )
KAREN GOLINSKI, Plaintiff,
Case No. 3:10-cv-0257-JSW Hearing: August 26, 2011, 9:00 a.m. INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND
vs. UNITED STATES OFFICE OF PERSONNEL
INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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MANAGEMENT, et al.,
) ) Defendants. ) __________________________________________)
AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
TABLE OF CONTENTS SUMMARY OF ARGUMENT .............................................................................................V ARGUMENT.........................................................................................................................1 I. BAKER AND ADAMS SQUARELY CONTROL HERE .................................................................1 A. Baker ....................................................................................................................1 B. Adams ...................................................................................................................4 II. RATIONAL-BASIS SCRUTINY APPLIES ................................................................................5 A. High Tech Gays Forecloses any Application of Heightened Scrutiny ................5 B. Homosexuals Bear None of the Characteristics of a Quasi-Suspect Class..........8 1. The Traditional Definition of Marriage was not Historically Intended as Class-Based Discrimination.................................................8 2. Characteristics Defined by Conduct are not Proper Markers for Suspect Classes ........................................................................................8 3. Homosexuality is Highly Relevant to an Individuals Ability to Conceive and Bear Children, Which is Foundational to the Purpose of Marriage ..............................................................................................11 4. Homosexuals are not a Politically Powerless Minority ..........................12
18 C. DOMA Does not Discriminate Based on Sex......................................................15 19 20 21 22 23 D. DOMA Does not Impact any Right to Form Family Relationships ....................15 III. DOMA PASSES THE RATIONAL-BASIS TEST ....................................................................17 A. Plaintiff Fundamentally Misconceives the Nature of Rational Basis Review.....17 B. A Myriad of Government Interests Support DOMA ...........................................20 1. Congress Desired to Preserve Nationwide Uniformity in the Allocation of Federal Marital Benefits and Duties..................................20 i INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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2. Congress was Justified in Acting With Caution When Faced With the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution of Marriage...........................................21 3. DOMA is Rationally Based on Biological Differences and Furthers the Government Interest in Incentivizing Childrearing by Parents of Both Sexes ............................................................................................24 4. Congress Desired to Avoid Creating a Social Understanding That the Begetting and Rearing of Children is not Inextricably Bound up With Marriage.....................................................................................26 C. Congress Is not Constitutionally Required to Accept any and all Definitions of Marriage and Spouse Adopted by the States............................................27 CONCLUSION......................................................................................................................29
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CERTIFICATE OF SERVICE
ii INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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TABLE OF AUTHORITIES
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)..............................................................4, 5 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)....................................................2 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ..............................................................................23 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).............................................................................15 Baker v. Nelson, 409 U.S. 810 (1972) ...................................................................................1 Ben-Shalom v. Marsh, 881 F.2d 454 (9th Cir. 1989).............................................................9 Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................................................5 Bray v. Alexandria Womens Clinic, 506 U.S. 263 (1993)....................................................9 Bush v. Vera, 517 U.S. 952 (1996) ........................................................................................9 Califano v. Boles, 443 U.S. 282 (1979) .................................................................................19 Christian Legal Socy v. Martinez, 130 S. Ct. 2971 (2010)...................................................7
13 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .......................................11 14 15 16 17 18 19 20 21 22 23 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)............................................passim Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974)......................................................16 De Sylva v. Ballentine, 351 U.S. 570 (1956) .........................................................................28 Dragovich v. U.S. Dept of Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011).....................15 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ................................................29 FCC v. Beach Commcns, 508 U.S. 307 (1993) ....................................................................passim Frontiero v. Richardson, 411 U.S. 677 (1973) ......................................................................10 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010).....................................passim Hicks v. Miranda, 422 U.S. 332 (1975).................................................................................2, 3 High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563 (1990) ........passim In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).........................................................15 iii INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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In re Levenson, 560 F.3d 1145 (9th Cir. EDR 2009).............................................................15 In re Marriage Cases, 43 Cal. 4th 757 (2008).......................................................................15 Lawrence v. Texas, 539 U.S. 558 (2003)...............................................................................passim Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976).................................................................19 Massachusetts v. HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) ..............................................4 Mathews v. De Castro, 429 U.S. 181 (1976) .........................................................................17 Mathews v. Diaz, 426 U.S. 67 (1976) ....................................................................................17, 18 Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) ...........................................................5, 6, 8 Miller v. Johnson, 515 U.S. 900 (1995).................................................................................9 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ........................................................9 Perry v. Sindermann, 408 U.S. 593 (1972)............................................................................16
11 Roberts v. United States Jaycees, 468 U.S. 609 (1984).........................................................16 12 Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...........................2 13 14 15 16 17 18 19 20 21 22 23 Romer v. Evans, 517 U.S. 620 (1996)....................................................................................3, 11 San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ................................................14 Schweiker v. Wilson, 450 U.S. 221 (1981) ............................................................................passim Shapiro v. Thompson, 394 U.S. 618 (1969)...........................................................................17 Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005)..........................................15 Sosna v. Iowa, 419 U.S. 393 (1975) ......................................................................................29 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980)....................................................................18 United States v. Lopez, 514 U.S. 549 (1995) .........................................................................29 United States v. Morrison, 529 U.S. 598 (2000) ...................................................................29 Vance v. Bradley, 440 U.S. 93 (1979) ...................................................................................19, 25 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)....................................................................2 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .........................................................15 iv INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) ......................................................6, 17 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989)................................................9 Statutes and Legislative Authorities 142 Cong. Rec. (1996) ...........................................................................................................20 150 Cong. Rec. (2004) ...........................................................................................................passim 152 Cong. Rec. (2006) ...........................................................................................................passim 2011 R.I.H.B. 6103 (May 17, 2011) ......................................................................................13 26 U.S.C. 7703....................................................................................................................28 28 U.S.C. 1738C .................................................................................................................21 42 U.S.C. 416......................................................................................................................28 5 U.S.C. 8101......................................................................................................................28 5 U.S.C. 8341......................................................................................................................28
12 8 U.S.C. 1186a ....................................................................................................................28 13 7 N.Y. Dom. Rel. 10-a (McKinney 2011) ..........................................................................13 14 15 16 17 18 19 20 21 22 23 750 Ill. Comp. Stat. 75 / 20 (2011) ........................................................................................13 Cal. Family Code 297.5 (2011)............................................................................................13 Colo. Rev. Stat. 297.5 (2011) ..............................................................................................13 D.C. Code 46-401 et seq. (2011) ........................................................................................13 Del. Code Ann. Tit. 13 212 (2011) .....................................................................................13 H.R. Rep. 104-664 (1996)......................................................................................................22 Haw. Rev. Stat. 572C-1 (2011)...........................................................................................13 Judicial Activism vs. Democracy: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Property Rights of the S. Comm. on Judiciary, 108th Cong. (2004) .........26-27 N.H. Rev. Stat. Ann. 457:1-a, et. seq. (2011) .....................................................................13 N.J. Stat. Ann. 26:8A-1, et seq. (2011)...............................................................................13 v INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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Nev. Rev. Stat. 122A.010 (2011)........................................................................................13 Or. Rev. Stat. 106.305 (2011) .............................................................................................13 Vt. Stat. Ann. Tit. 15, 8, et. seq. (2011)...............................................................................13 Wash. Rev. Code 26.60.010 (2011)....................................................................................13 Other Authorities Eileen Donahoe, U.S. Ambassador to the Human Rights Council, Briefing to the U.S. State Department on U.N. LGBT Human Rights Council Resolution (June 17, 2011) ........14 Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, May 20, 2011 .........................................................................................................................13 G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay and Bisexual Adults (2010)......................................................10 Jay Carney, White House Press Secretary, Statement on Ending Violence Based on Sexual Orientation and Gender Identity (Mar. 22, 2011) ......................................................14 Leahy Plans Congressional Hearing on Law that Bans Gay Marriage, Burlington Free Press, July 12, 2011 .......................................................................................................29 Michelle Minkoff, et al., Proposition 8: Who Gave in the Gay Marriage Battle?, July 13, 2011..........................................................................................................................13 Secretary of State Hillary Clinton, Remarks at LGBT Pride Month Celebration (June 27, 2011).......................................................................................................................14
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SUMMARY OF ARGUMENT The arguments raised by Plaintiff, Karen Golinski, and the Department of Justice (DOJ), fail for multiple reasons. First, DOMA does not violate the equal protection component of the Fifth Amendments Due Process Clause because it passes rational-basis review. This conclusion is firmly supported by binding Supreme Court and Ninth Circuit precedent. See Baker v. Nelson, 409 U.S. 810 (1972); Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). And even if the doctrinal developments alleged by plaintiffs and DOJ had undermined the binding force of Baker and Adams, which they have not, the appropriate court to acknowledge such doctrinal development is the Supreme Court. Both Plaintiff and DOJ argue that DOMA is subject to heightened scrutiny. This argument fails for several reasons. First, the Ninth Circuit unequivocally held in High Tech Gays v. Defense Industry Security Clearance Office, that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment. 895 F.2d 563, 574 (1990). Despite Plaintiffs and DOJs protestations to the contrary this remains binding Circuit precedent. Second, even under an independent analysis of the factors for determining whether a group is a suspect or quasi-suspect class, homosexuals are neither, as every circuit court to have addressed the question has held. DOMA easily passes the rational-basis test. Congress had multiple rational bases for passing DOMA. Indeed, DOJ concedes that if rational basis review applies, a reasonable argument for the Constitutionality of Section 3 of DOMA can be made. See DOJ Brief in Opp. to Motions to Dismiss 18 n.14, ECF No. 145. Accordingly, this Court should grant the Houses motion to dismiss. vii INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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ARGUMENT Plaintiffs opposition to the Houses motion to dismiss is filled with misunderstandings of the nature of precedent, of equal-protection jurisprudence, of rational-basis review, and of DOMAs purpose and effect. These misunderstandings underscore why the debate over the redefinition of marriage should take place through the democratic process, not in the courts. The extraordinary opposition filed by the United States Department of Justice (DOJ) reads more like a policy statement than a brief directed to a United States District Court bound by circuit precedent. DOJ acknowledges that its only argument is foreclosed by binding Ninth Circuit precedent, but simply maintains that precedent is wrong. As this Court is aware, such an argument is beside the point at the district-court level.1 DOJs attempt to impugn the motives of the 427 Members of Congress who voted for DOMA and of President Clinton, who signed DOMA into law, by asserting that DOMA was motivated in significant part by animus towards gays and lesbians, DOJ Br. 18, underscores that the separation of powers is ill-served when DOJ abandons its traditional defense of duly enacted statutes and switches into attack mode. It is also wrong. As explained herein, Congresss decision to adhere to the traditional definition of marriage for purposes of federal law cannot simply be labeled animus. I. BAKER AND ADAMS SQUARELY CONTROL HERE. A. Baker. As the House explained in its opening Memorandum, Baker v. Nelson, 409 U.S. 810 (1972), establishes as binding precedent that a state does not violate the Equal The House notes that DOJ has both moved to dismiss and opposed its own motion. See Defs. Brief in Oppn to Motions [plural] to Dismiss 24, ECF No. 145 (DOJ Br.) (concluding that defendants and BLAGs motions to dismiss should be denied). DOJs litigation schizophrenia results from its errant view that the House lacks standing to move to dismiss. This Court rightly rejected DOJs view. See Order June 3, 2011, ECF No. 116 (granting the Houses motion to intervene).
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Protection Clause of the Fourteenth Amendment by defining marriage as between one man and one woman. And the Supreme Courts approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (quoting
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). Thus, Baker is dispositive on the issue in this case: whether the government violates equal protection by reserving certain marital benefits (and burdens) to opposite-sex married couples. Plaintiff cites Hicks v. Miranda, 422 U.S. 332, 344-45 (1975), arguing that Baker may have been deprived of its binding force by subsequent doctrinal developments short of an outright overturning or repudiation of its holding. But Plaintiff cites not a single case, and the House is aware of none, where the Supreme Court actually found it appropriate for a lower court (as opposed to the Supreme Court itself) to second guess one of its precedents on this basis. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.). And this case is a particularly poor candidate to become the first in this genre. Plaintiff identifies three doctrinal developments that supposedly have divested Baker of its binding character. None is even arguably inconsistent with Baker in the strong sense required by the Hicks rule. First, Plaintiff notes that, since Baker, the Supreme Court has held that sexbased classifications are subject to heightened scrutiny. Pl.s Mem. in Oppn to Mot. to Dismiss 7, ECF No. 133 (Pl.s Oppn). As illustrated by every court to have considered a sexdiscrimination argument against DOMA, it is far more plausible to read Baker as entirely 2 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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consistent with the Supreme Courts subsequent sex-discrimination jurisprudence, on the ground that same-sex marriage restrictions classify, if at all, on the basis of sexual orientation and not sex. See infra at 14-15. Second, Plaintiff cites Romer v. Evans, 517 U.S. 620, 634-35 (1996), in which the Supreme Court held that the government has no legitimate interest in simply harming disfavored minorities. But again, there is no reason to regard Baker as accepting such a
justification for the Minnesota law, as opposed to accepting any of the great many other possible rational bases for traditional marriage. This fact is starkly illustrated by the third doctrinal development noted by Plaintiff, the Supreme Courts decision in Lawrence v. Texas, 539 U.S. 558 (2003). There, although the Court ruled that laws criminalizing certain homosexual conduct violate substantive due process, it expressly disclaimed any ruling on whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Id. at 578; cf. id. at 585 (OConnor, J., concurring) (stating that preserving the traditional institution of marriage is a legitimate state interest). Very obviously, the Supreme Court itself does not regard the unconstitutionality of traditional-marriage statutes to have been indicate[d] by doctrinal developments since Baker. In short, the lower courts are bound by summary decisions by [the Supreme] Court until such time as the Court informs them that they are not, Hicks, 422 U.S. at 344-45 (internal quotation marks and brackets omitted), and the Supreme Court has pointedly refrained from contradicting the decision in Baker. Accordingly, Baker remains binding here.2
Plaintiff and DOJ also contend that Baker is inapplicable because it involved the denial of a marriage license under state law. Pl.s Oppn 6-7; DOJ Br. 3-4 n.3. This is a distinction without a difference. Baker held that a state may reserve the status and benefits of marriage under state law for opposite-sex couples without violating equal protection. The question here is whether Congress may reserve marital benefits under federal law for opposite-sex couples without violating equal protection. Baker squarely controls that question. 3 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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B. Adams. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), also establishes that DOMA does not violate equal protection. Plaintiff again makes several unavailing attempts to distinguish this binding precedent. First, Plaintiff claims that in Adams there was a question whether the same-sex couple was validly married under state law. This is inconsistent with Adams itself, in which the Ninth Circuit expressly found it unnecessary to make an educated guess as to how the Colorado courts would decide this issue, and concluded that federal law would not recognize the plaintiffs as married [e]ven if the Adams-Sullivan marriage were valid under Colorado law. Id. at 1039. Thus, the state-law issue was immaterial to the decision in Adams.3 Plaintiff also mischaracterizes Adams as involving only a highly deferential and limited form of review, not applicable here, grounded in the courts view of Congresss plenary immigration power. Pl.s Oppn 7. That is glaringly wrong. While the Adams court
acknowledged that a lesser standard of review might sometimes apply to immigration statutes, its holding speaks for itself: We hold that Congresss decision to confer spouse status under section 201(b) only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements. There is no occasion to consider in this case whether some lesser standard of review should apply. 673 F.2d at 1042. The court case relied on by Plaintiff for the proposition that Adams did not involve[] the displacement of a state marital status determination by a federal one thus is flatly wrong on this point. See Massachusetts v. HHS, 698 F. Supp. 2d 234, 251 n.152 (D. Mass. 2010). Adams assumed without deciding that Colorado law would recognize the same-sex marriage at issue there. But once that assumption was in place, the federal law definition of marriage most certainly did displace the assumed state law rule. Adams, 673 F.2d at 1039 (Even if the . . . marriage were valid under Colorado law, the marriage might still be insufficient to confer spouse status for purposes of federal immigration law.).
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Finally, Plaintiff declares that Adams cannot be binding because it is wrong. Pl.s Oppn 8 (Adams also relied on irrational justifications for the laws exclusion of same-sex spouses . . . that are manifestly untrue and inconsistent with contemporary federal jurisprudence.). Even were this correct, which it is not, the prerogative of overturning Ninth Circuit precedents rests with the en banc Ninth Circuit or the Supreme Court, not with district-court plaintiffs. II. RATIONAL-BASIS SCRUTINY APPLIES. A. High Tech Gays Forecloses any Application of Heightened Scrutiny.
In High Tech Gays v. Defense Industry Security Clearance Office, the Ninth Circuit unequivocally h[e]ld that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment. 895 F.2d 563, 574 (1990). DOJ candidly concedes that High Tech Gays is binding authority of this circuit[] holding that rational basis review generally applies to sexual orientation classifications. DOJ Br. 4. Until and unless this precedent is overturned by the en banc Ninth Circuit or the Supreme Court, that ends the inquiry: rationalbasis scrutiny applies here. Plaintiff nonetheless maintains that High Tech Gays is no longer binding because it has been undermined by later Supreme Court decisions. Ninth Circuit panel decisions are divested of their binding nature only when the relevant court of last resort [has] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). In this vein Plaintiff and DOJ observe that High Tech Gays relied in part on the Supreme Courts sinceoverturned decision in Bowers v. Hardwick, 478 U.S. 186 (1986), holding that homosexualsodomy prohibitions do not violate the Constitution. See High Tech Gays, 895 F.2d at 571. 5 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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What they do not mention is that the Ninth Circuit has already rejected precisely this argument, noting that although Lawrence overruled Bowers, it declined to address equal protection and therefore did not disturb[] other Circuit precedents applying rational-basis review to sexualorientation classifications. Witt v. Dept of Air Force, 527 F.3d 806, 821 (9th Cir. 2008). Justice OConnors concurrence in Lawrence expressly did apply rational-basis review, and reached the same result as the majority. 539 U.S. at 582-85. In Witt, the dissent cited Lawrence and Gammie and quoted precisely the same clearly irreconcilable language relied upon by Plaintiff here. Witt, 527 F.3d at 824 (Canby, J., concurring in part and dissenting in part). The majority thus obviously was on notice of this argument and rejected it. This makes good sense. Lawrence held only that same-sex sodomy bans violate due process; as the Ninth Circuit recognized in Witt, it said nothing whatsoever about the level of scrutiny applicable to sexual-orientation classifications (it pointedly said nothing about the level of scrutiny applicable to any question at all). Justice OConnors concurrence in Lawrence expressly did apply rational-basis review, and reached the same result as the majority. 539 U.S. at 582-85. Unlike in Gammie and cases following it, nothing in Lawrence or any other Supreme Court opinion is inconsistent with the rule of High Tech Gays: that rational-basis scrutiny applies to sexual-orientation classifications. There is thus no basis for concluding that High Tech Gays requirement of rational-basis review is irreconcilable with Lawrence. Cf. Gammie, 335 F.3d at 900. This conclusion is only reinforced by the fact that the High Tech Gays court identified an alternative rationale for its application of rational-basis review that was entirely independent of Bowers. First, the Ninth Circuit concluded that homosexuals are not without political power, and thus are not a suspect class. See High Tech Gays, 895 F.2d at 574. This alone dictates the 6 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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use of rational-basis review here.
In addition, the High Tech Gays court concluded that
[h]omosexuality is not an immutable characteristic. Id. Neither Plaintiff nor DOJ contends that the overturning of Bowers impaired the viability of this analysis, nor could they plausibly do so. Instead, Plaintiff claims that the Supreme Court has rejected a distinction between status and conduct of this kind. See Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2990 (2010). This mischaracterizes the Christian Legal Society decision in two ways. First, the case had nothing to do with equal protection; the language Plaintiff quotes addressed only whether a universitys anti-discrimination policy might reasonably prohibit discrimination based on homosexual conduct because of the difficulty of distinguishing it from discrimination based on homosexual orientation. Second, even assuming that this principle applies by analogy to the equal-protection context, it would say nothing about whether homosexual persons or any other behaviorally-defined class should be specially protected. Instead it would establish only that the behavioral nature of homosexuality does not prevent regulations targeted at homosexual conduct from being regarded as class-based at all. The Ninth Circuit in High Tech Gays followed this rule to the letter. Considering a regulation that restricted the issuance of security clearances to persons who engaged in [a]cts of sexual misconduct or perversion, 895 F.2d at 567 n.4 (emphasis added), who exhibited aberrant, deviant or bizarre sexual conduct or behavior, id. at 567 (emphasis added), or who [p]articipat[ed] in deviant sexual activities, id. at 568 (emphasis added), the High Tech Gays Court did not treat these regulations as classifying based only on behavior, but instead analyzed them as a classification based on homosexuality itself. Its holding that behaviorally defined classes are not suitable for treatment as suspect classes under equal protection principles thus is entirely unaffected by the Supreme Court precedents identified by Plaintiff. As explained infra 15, that approach is consistent with the 7 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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approach of other Circuits and correct. It most certainly is not irreconcilable or directly at odds with any subsequent Supreme Court ruling. See Gammie, 335 F.3d at 900. High Tech Gays therefore remains binding precedent in this Circuit, and rational-basis scrutiny applies to statutes that classify on the basis of sexual orientation. B. Homosexuals Bear None of the Characteristics of a Quasi-Suspect Class.
In any event, sexual orientation is not similar enough to race, national origin, alienage, sex, and illegitimacy to join them in the ranks of suspect or quasi-suspect classifications. 1. The Traditional Definition of Marriage was not Historically Intended as Class-Based Discrimination.
There is no dispute that in recent decades homosexuality has been regarded as a characteristic justifying a variety of adverse actions by both governmental and private actors. Plaintiff and DOJ decry as animus the motivations of hundreds of Senators and Representatives and of President Clinton in enacting DOMA. But DOMA merely codified a definition of marriage that had existed in state and federal law for centuries. Neither Plaintiff nor DOJ maintains that this historical definition was motivated by animus.4 2. Characteristics Defined by Conduct are not Proper Markers for Suspect Classes.
There currently is no method (and may never be one) for identifying a persons sexual orientation except through associational choices. This is in sharp contrast to the other suspect and quasi-suspect classifications, all of which are defined by identifiable biological or historical facts. The very purpose of equal-protection review of such classifications is often to prevent And this omission is consistent with the Supreme Courts observations in Lawrence that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century, because this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. 539 U.S. at 568-69. 8 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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them from forcing class members to engage, or assuming that they will engage, in stereotypical conduct that bears no necessary relationship to the characteristics that define the class. E.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718, 729 (1982) (exclusion of men from nursing school tends to perpetuate the stereotyped view of nursing as an exclusively womans job); Bush v. Vera, 517 U.S. 952, 968 (1996) ([T]o the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation.); Miller v. Johnson, 515 U.S. 900, 914 (1995). By contrast, the very definition of the class of homosexual persons is their propensity to engage in homosexual conduct. Adding homosexuality to the list of suspect or quasi-suspect classes thus would fundamentally alter the nature of this criterion as well. The Supreme Court has acknowledged that classifications may be subject to equalprotection scrutiny if they use conduct as a proxy for discriminating on the basis of other specially-protected characteristics. See Bray v. Alexandria Womens Clinic, 506 U.S. 263, 270 (1993) (considering whether opposition to abortion might be discrimination against women; noting that a tax on wearing yarmulkes is a tax on Jews). But it has never suggested that the desire to engage in a certain kind of conduct might itself be a specially-protected characteristic. And multiple Courts of Appealsforemost among which is the Ninth Circuit in High Tech Gayshave recognized that sexual orientation is fundamentally different from traits such as race, gender, or alienage, because [t]he behavior or conduct of such already recognized classes is irrelevant to their identification. 895 F.2d at 573-74; see also Ben-Shalom v. Marsh, 881 F.2d 454, 464 (9th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (Homosexuality . . . differs fundamentally from those defining any of the recognized suspect or quasi-suspect classes. . . . The conduct or behavior of the members of a recognized suspect or quasi-suspect class has no relevance to the identification of those groups.). 9 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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There are good reasons for the courts reluctance to transform the definition of suspect classifications in this way. First, there is reason to believe that behaviorally-defined classes would almost invariably be less well-defined and exhibit a lesser degree of immutability in their defining characteristics than the recognized protected classes. DOJs and Plaintiffs own
evidence indicates that 1 out of 20 self-identified gay men and nearly 1 out of 5 lesbians reported that they experienced some choice about their sexual orientation. See DOJ Br. 13; Decl. of Letitia Anne Peplau, ECF No. 137, at 25 & n.12 (citing G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay and Bisexual Adults, 7, 176-200 (2010)).5 This contrasts with the other suspect classes, which are immutable
characteristic[s] determined solely by the accident of birth. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality op.). The recognition of opt-in protected classes thus would require a significant watering down of the immutability requirement, leading to potentially far-reaching and uncertain consequences. Second, such a doctrinal revolution would inappropriately shift the focus of equalprotection analysis away from whether individual persons should be treated equally toward the issue of the social benefits or detriments from particular behaviorthe behavior that defines the class. This inquiry is much more appropriately handled under the rubric of fundamental-rights jurisprudence.
Only two-thirds of lesbians reported having no choice about their sexual orientation. Decl. of Letitia Anne Peplau, ECF No. 137, at 25 n.12. Plaintiffs expert declarations are extrinsic materials that are not properly before the Court on a motion to dismiss, and should be stricken from the record. See Houses Mot. to Strike, July 15, 2011. If the Houses motion to strike is granted it will re-file a version of this brief without discussion of the declarations. 10 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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3.
Homosexuality is Highly Relevant to an Individuals Ability to Conceive and Bear Children, Which is Foundational to the Purpose of Marriage.
Even if a group meets the other criteria for treatment as a suspect or quasi-suspect class, rational basis review will apply where individuals in the group . . . have distinguishing characteristics relevant to interests the state has the authority to implement. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985). The states interest in marriage is undeniably linked to its extraordinary interest in the conception, birth, and upbringing of the next generation of citizens. But the defining characteristic of homosexuals as a class is an interest in sexual activity that does not result in the conception of a new life, and a lack of interest in potentially procreative sexual activity. The natural and reasonable consequences are that on average a same-sex relationship is far less likely to produce children than an opposite-sex relationship, and that same-sex relationships that do result in children on average produce fewer children than corresponding opposite-sex relationships. It was on this basis that the Eighth Circuit, even after the Supreme Courts decision in Lawrence, concluded that sexual orientation is not a suspect classification. Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-68 (8th Cir. 2006) (noting that opposite-sex couples . . . can otherwise produce children by accident, which same-sex couples cannot do). The Supreme Court has held that the Constitution protects the right to engage in homosexual activity, Lawrence, 539 U.S. 558, and that a bare desire to harm homosexuals is not a legitimate state interest, Romer, 517 U.S. 620, but it has never suggested that the Constitution requires government to treat heterosexual and homosexual conduct as identical in contexts where they unavoidably are not. It thus is unnecessary to inquire into the comparative parenting abilities of same-sex couples to discern that, with respect to one of the most important social benefits of marriage, sexual orientation is highly relevant to state interests, and bears a vital 11 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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relation to ability to perform or contribute to society. City of Cleburne, 473 U.S. at 441. Accordingly, sexual orientation is not a quasi-suspect classification. 4. Homosexuals are not a Politically Powerless Minority.
Plaintiff and DOJ appear to be oblivious to the irony of maintaining that homosexuals have limited political power and ability to attract the favorable attention of the lawmakers, Pl.s Oppn 12 (quoting Rep. from Atty Gen. to Speaker of House of Representatives, Feb. 23, 2011, at 3); see also DOJ Br. 14-15, when the very fact that the United States Department of Justice is making this argument is itself extremely powerful testimony to homosexual interest groups extraordinary political influence over the current Administration.6 As the High Tech Gays court held, homosexuals are not without political power, and thus are not a suspect class. 895 F.2d at 574. This conclusion is even more true today than it was when High Tech Gays was decided. In the court of popular opinion, in the halls of legislative power, and in American diplomacy on the global stage, homosexual rights groups are anything but a powerless minority. Instead they are a major political force well-equipped to wage and, very often, to win major policy battles and who have gained more political ground in less time than just about any other interest group One of Plaintiffs experts argues that legislation favoring a minority does not demonstrate the minoritys political power if it resulted from legislators disinterested sympathy for the minority instead of political coercion visited by the minority on the legislature. Decl. of Gary Segura, ECF No. 138, at 17 (distinguishing between affinity and political power). Regardless of which side of this divide homosexual-rights laws would fall on, it clearly is not relevant to the legal criterion of political powerlessness established by the Supreme Court. Otherwise the Courts conclusion that, for instance, the mentally handicapped are not politically powerless would be utterly incomprehensible. City of Cleburne, 473 U.S. at 445 ([T]he legislative response . . . negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect.). 12 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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in American political history. According to Gallup polling, between 1996 and 2011, the portion of the United States population who believed that same-sex marriage should be recognized increased from 27% to 53%. Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage, May 20, 2011. In the campaign over Proposition 8, Californias
traditional-marriage constitutional amendment, pro-homosexual marriage forces were able to raise and spend more money than proponents of traditional marriage. Michelle Minkoff, et al., Proposition 8: Who Gave in the Gay Marriage Battle?, July 13, 2011, available at http://projects.latimes.com/prop8/. In the space of only half a decade, this popular and financial support has translated into legislation recognizing same-sex marriage in Vermont, New York, New Jersey, New Hampshire, and the District of Columbia,7 and offering legal rights for samesex couples substantially equal to those of marriage in Delaware, Hawaii, Illinois, Rhode Island, Colorado, Oregon, California, Washington, and Nevada.8 When jurisdictions where such rights have been imposed judicially are added, a full 37% of the United States population lives in states that substantively treat same-sex relationships identically to traditional marriages.9 And the
United States Department of State has made promoting rights for homosexuals a major aspect of American foreign policy. In June, 2011, the U.S. sponsored a U.N. Human Rights Council resolution described by the U.S. Ambassador as the first internationally recognized form of
7 N.Y. Dom. Rel. 10-a (McKinney 2011);Vt. Stat. Ann. Tit. 15, 8, et. seq. (2011); N.J. Stat. Ann. 26:8A-1, et seq. (2011); N.H. Rev. Stat. Ann. 457:1-a, et seq. (2011); D.C. Code 46-401 et seq. (2011). 8 Del. Code Ann. Tit. 13 212 (2011); Haw. Rev. Stat. 572C-1 (2011); 750 Ill. Comp. Stat. 75 / 20 (2011); 2011 R.I.H.B. 6103 (May 17, 2011); Colo. Rev. Stat. 297.5 (2011); Or. Rev. Stat. 106.305 (2011); Cal. Family Code 297.5 (2011); Wash. Rev. Code 26.60.010 (2011); Nev. Rev. Stat. 122A.010 (2011). 9 Calculated from census data available at http://2010.census.gov/2010census/data/. 13 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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protection for lesbian, gay, transgender, and bisexual people. 10 President Obama has supported the extension of LGBT rights abroad by endorsing the creation of a post within the InterAmerican Commission on Human Rights to promote LGBT rights.11 And Secretary of State Hillary Clinton has firmly endorsed a policy of promoting LGBT rights abroad, stating that gay rights are human rights, and human rights are gay rights.12 As Plaintiff and DOJ note, racial minorities and in particular women had already obtained legal protections through the political process when they were recognized as protected classes. Pl.s Oppn 12; DOJ Br. 16. But by contrast, the mentally handicapped and the poor have been held to not be politically powerless. City of Cleburne, 473 U.S. at 445; San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). And the very significant gains made by homosexualrights groups both in legislative terms and in popular opinionand the phenomenal speed at which these victories have comedemonstrate that they have ample ability to attract the favorable attention of lawmakers. In addition, Plaintiffs and DOJs attempts to equate the situation of homosexuals in this regard with that of racial minorities or women elides the fact that homosexuals make up a much smaller portion of the population than do women or racial minorities; their ability to make real political gains despite their small numbers bespeaks a proportionate political power significantly greater than that of other protected classes.
Eileen Donahoe, U.S. Ambassador to the Human Rights Council, Briefing to the U.S. State Department on U.N. LGBT Human Rights Council Resolution (June 17, 2011). 11 Jay Carney, White House Press Secretary, Statement on Ending Violence Based on Sexual Orientation and Gender Identity (Mar. 22, 2011). 12 Secretary of State Hillary Clinton, Remarks at LGBT Pride Month Celebration (June 27, 2011). 14 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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C.
DOMA Does not Discriminate Based on Sex.
Plaintiff also maintains that DOMA is subject to heightened scrutiny because it discriminates based on sex. She cites no decision, and the House is aware of none, in which a court interpreting the federal Constitution reached a similar conclusion. Instead, every court to have considered the question as a matter of federal law has concluded that DOMA classifies, if at all, on the basis of sexual orientation, not of sex. Dragovich v. U.S. Dept of Treasury, 764 F. Supp. 2d 1178, 1182 (N.D. Cal. 2011); Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861, 877 (C.D. Cal. 2005); In re Kandu, 315 B.R. 123, 143 (Bankr. W.D. Wash. 2004); see also U.S. House of Representatives . . . Mot. to Dismiss at 21 n.3, ECF No. 119-1 (House Mem.). 13 D. DOMA Does not Impact any Right to Form Family Relationships.
Finally, Plaintiff amalgamates a number of unrelated precedents in an attempt to maintain that DOMA burden[s] her constitutional liberty to build a family life. Pl.s Oppn 16-17. Without disputing the Houses demonstration that the constitutional right to marriage does not extend to same-sex marriage, see House Mem. 14-19, Plaintiff argues that, because she is already married under state law, her claim is not that DOMA affects her right to marry but rather that it burdens [her] protected right to form and maintain an intimate family relationship with a person In In re Levenson, Judge Reinhardt sitting in his administrative capacity found it unnecessary to decide this question. 560 F.3d 1145, 1147 (9th Cir. EDR 2009). In In re Marriage Cases, the California Supreme Court interpreting its State constitution actually rejected the contention urged by Plaintiff, stating that we do not agree with the claim . . . that the applicable statutes properly should be viewed as an instance of discrimination on the basis of the suspect characteristic of sex or gender. 43 Cal. 4th 757, 783-84 (2008). To the Houses knowledge only Baehr v. Lewin suggests to the contrary, and the court there expressly noted that it was interpreting the Hawaii constitution, that [t]he equal protection clauses of the United States and Hawaii Constitutions are not mirror images of one another, 852 P.2d 44, 59 (Haw. 1993), and that Hawaiis equal protection clause is more elaborate than the federal one, id. at 60. In any event, Baehr has since been rejected by an amendment to Hawaiis constitution. 15 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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of the same sex. Pl.s Oppn 17 n.16. This contention is riddled with flaws. First and most obviously, Plaintiffs state-law marriage is the intimate relationship that she claims DOMA burdens, and her claim is entirely dependent on that fact. Plaintiff does not, and could not plausibly, maintain that DOMA unconstitutionally burdens the intimate relationships of samesex couplesor opposite-sex couples for that matterwho choose not to marry. Thus, DOMA burdens Plaintiffs right to enter a family relationship precisely, and only, to the extent it burdens her right to enter and maintain a marriage.14 It is inconceivable that such a claim could be predicated on anything other than the constitutional right to marry. Second, and for similar reasons, Plaintiff is incorrect when she insists that DOMA penalizes her for entering a same-sex relationship. Pl.s Oppn 17. For the same reasons that DOMA does not infringe upon the right to marry, see House Mem. 19, it also does not penalize entering into same-sex family relationships. Instead, under DOMA Plaintiff has been treated exactly the same by the federal government both before and after she entered her relationship with Ms. Cunninghis, and both before and after their relationship was recognized as a marriage under California law. This fact starkly distinguishes Plaintiffs claim from those at issue in the cases she cites for the proposition that government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). In each of these cases, the government deprived Plaintiff of a benefit or inflicted on her a detriment solely as a result of her engagement in a protected activity. See id. at 595-96 (college professor claimed he was terminated because he engaged in speech critical of the schools Board of Regents); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640 (1974) The right to marry has repeatedly been listed by the Supreme Court as first among the group of protected family relationships. E.g., Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). 16 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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(government may not force unpaid leave on employees who become pregnant); Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (state may not restrict welfare benefits to newcomers traveling from other states). Thus, Plaintiff has suffered no penalty as a result of DOMA. Finally, and most crucially, for the proposition that the Constitution protects the rights of same-sex couples to enter intimate relationships, Plaintiff cites only to Lawrence, 539 U.S. at 573-74 (2003), a due-process case in which the Court did not sanction the heightened scrutiny that Plaintiff and DOJ seek here. Id. at 578. Instead, as the Ninth Circuit has held, Lawrence did not disturb[] equal protection precedents, including those mandating rational-basis scrutiny. Witt, 527 F.3d at 821. III. DOMA PASSES THE RATIONAL-BASIS TEST. As noted above, DOJ concedes that the binding authority of this circuit holds that sexual orientation classifications are subject to rational basis review. DOJ Br. 4. DOJ also concedes that DOMA passes muster under rational basis review. Id. at 18 n.14. DOJ is surely correct on that score. See House Mem. 22-29. A. Plaintiff Fundamentally Misconceives the Nature of Rational Basis Review.
The Supreme Court has recognized the existence of a broad category of regulations in which Congress had to draw the line somewhere, FCC v. Beach Commcns, 508 U.S. 307, 316 (1993), and where inevitably . . . some persons who have an almost equally strong claim to favored treatment [will] be placed on different sides of the line. Mathews v. Diaz, 426 U.S. 67, 83 (1976); see also Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (line-drawing statutes inevitably involve[] the kind of line-drawing that will leave some comparably needy person outside the favored circle) (quoting Mathews v. De Castro, 429 U.S. 181, 185 (1976) for the strong presumption of constitutionality). In such cases Congresss decision about precisely 17 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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where to draw the line is virtually unreviewable. Beach Commcns, 508 U.S. at 316. The only remaining question is whether the line Congress drew was patently arbitrary or irrational. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 177 (1980). Here, it is beyond dispute that some line is essential to delineate the boundaries of the institution of marriage, cf. Mathews, 426 U.S. at 83: no matter what definition of marriage Congress might adopt, some relationships will fall outside it. And under any definition of marriage there will always remain other relationships that have an almost equally strong claim to favored treatment. Id. at 83. The only question is precisely where the line will be drawn. Although Plaintiff purports to argue that DOMA fails rational-basis scrutiny, she ignores this basic principle of rational-basis review, skipping over the non-arbitrary bases on which Congress drew the boundary line for federal marital benefits, and instead simply arguing that DOMA is irrational unless refusing such benefits to same-sex couples would in and of itself benefit traditional marriages. Plaintiff assumes that DOMA cannot promote responsible
procreation because, she says, non-recognition of marriages between same-sex couples will not do anything to encourage heterosexuals to raise children within married relationships. Pl.s Resp. at 26. While this is incorrect on its own terms, see infra 24-25, it also establishes an artificially high hurdle for rational-basis review. In examining the validity of a line-drawing statute, the proper inquiry is not whether the exclusion of people outside the line somehow affirmatively benefits the ones inside, as Plaintiff assumes, but rather whether Congress had any non-arbitrary basis for drawing the line where it did. Particularly where it was rational for Congress to conclude that drawing the line would limit federal expenditures and preserve the public fisc over the long term, that minimal standard is readily satisfied. For example, in Schweiker the Supreme Court considered an equal-protection challenge 18 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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to Congresss decision to extend Supplemental Security Income benefits to aged, blind or disabled persons residing in hospitals or nursing homes that receive Medicaid funds, but to deny SSI benefits to similar persons residing in non-Medicaid facilities. 450 U.S. at 226. Applying rational basis review, the Supreme Court did not ask the question that would have been analogous to the Plaintiffs argument herewhether the denial of benefits to persons in nonMedicaid institutions would somehow further a government interest in aiding other aged, blind, or disabled people. Instead, the Court simply noted that Congress could rationally have
concluded that the care and maintenance of persons in non-Medicaid institutions was primarily a state and not a federal responsibility, and found the line-drawing exercise to be non-arbitrary on that basis. Id. at 238-39; see also Vance v. Bradley, 440 U.S. 93, 106-08 (1979); Califano v. Boles, 443 U.S. 282, 291-93 (1979) (Congress could deny social security benefits to a mother who had never married the deceased father of her children while providing them to mothers who were divorced from the deceased fathers, not because the denial would assist in aiding divorced mothers with deceased ex-husbands but because the divorcees were more likely to have financially relied on their husbands and thus less able to support themselves); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 315-17 (1976) (upholding mandatory retirement age of 50 for police not because it improved the performance or compensation of under-50 police, but because persons over 50 as a whole are less qualified). Thus, the proper question here is whether Congress had non-arbitrary reasons to preserve the traditional definition of marriage for purposes of allocating federal burdens and benefits or whether non-arbitrary justifications can be posited for Congresss action. As explained below, numerous rational bases support DOMA.
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B.
A Myriad of Government Interests Support DOMA. 1. Congress Desired to Preserve Nationwide Uniformity in the Allocation of Federal Marital Benefits and Duties.
Plaintiff offers no persuasive response to the Houses observation that DOMA is supported by a desire to maintain a uniform federal definition of marriage in light of the wide variations in state definitions that have developed. House Mem. at 24-25. Plaintiff maintains only that, prior to DOMA, the supposedly uniform rule was deference to state law. Pl.s Oppn at 23-24. She does not and cannot explain why, when serious disuniformities threatened to appear in state law, the federal interest in uniformity was not better served by adopting a substantive definition of marriage. As the House stated in its opening Memorandum, DOMA avoids situations where some same-sex couples would be eligible for federal benefits and some would not depending on the vagaries of state law. House Mem. at 24-25. More confusion would arise regarding the status of a same-sex couple that marries in a state where same-sex marriage licenses are available but resides in a state where same-sex marriage is not permitted. See 152 Cong. Rec. S5481 (2006) (Sen. Carper) (If we have a same-sex couple in Delaware who decide to go to another country or another place where same-sex marriages are allowed, and then that couple comes back to Delaware and claims they are married, they are not married in my State.). In enacting DOMA Section 3, Congress could and did rationally decide to avoid creating such a patchwork. See 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) (discussed infra at 21-24). See also 150 Cong. Rec. S7966 (2004) (Sen. Inhofe) (same-sex marriage should be handled on a Federal level [because] people constantly travel and relocate across State lines throughout the Nation.). Congresss interest in a uniform definition of marriage for purposes of federal benefits based on marital status is confirmed by its enactment of Section 2 of DOMA, which permits 20 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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states to decline to recognize same-sex marriages entered into in other states. 28 U.S.C. 1738C. Congress foresaw that, with the advent of same-sex marriage, same-sex couples residing in jurisdictions where same-sex marriage is not permitted would travel to marry in jurisdictions where it is, and then return home. And that is exactly what has happened. See 150 Cong. Rec. S7961 (2004) (Sen. Hutchison) (Today, same-sex couples from 46 States have traveled to Massachusetts, California, and Oregon to receive marriage licenses with the intention of returning to their respective States). Both Section 2 and Section 3 DOMA thus were intended to advance Congresss interest in uniformity. 2. Congress was Justified in Acting With Caution When Faced With the Unknown Consequences of a Proposed Novel Redefinition of the Foundational Social Institution of Marriage.
Plaintiff claims that preserving this historical definition of marriage is nothing but a tautology, Pl.s Oppn at 23, and that [s]taying the course is not an end in and of itself, but rather a means to an end, id. at 23-24 (quoting Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 390-94 (D. Mass. 2010)). She does not address the fact that the status quo preserved by DOMA is a defining element of the single most foundational institution of our society, which element has existed for all of recorded history and was a background assumption of Congress in enacting over a thousand federal statutes.15 As Plaintiff acknowledges, when DOMA was enacted, no state permitted same-sex marriage. The Congresses that enacted each and every one of the hundreds and hundreds of federal statutes using the words marriage and spouse did so on the understanding that those Plaintiff also offers no explanation for her contention that Congress was somehow prohibited from preferring to preserve and maintaining uniformity in the ancient substantive definition of marriage, as opposed to preserving and maintaining the uniformity of the supposedly traditional deference of federal law to state law in this matter, in a situation where only one of these goals could be achieved. See Pl.s Oppn at 22-24. 21 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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words designated traditional marriages. DOMA codifies the definition of marriage universally accepted in American law, and in world history, until just a few years ago. No one can deny that Congress very reasonably could find that the institution is of central importance to civilized society, and has been virtually everywhere for all of recorded history. See 152 Cong. Rec. S5473 (2006) (Sen. Talent) ([M]arriage may be the most important of all [social] institutions because it represents the accumulated wisdom of literally hundreds of generations over thousands of years.); 150 Cong. Rec. S7879 (2004) (Sen. Hatch) ([T]raditional marriage has been a civilizational anchor for thousands of years. . . . . Decoupling procreation from marriage . . . denies the very purpose of marriage itself.). Viewed in this light, Congress had a supremely rational basis to proceed with extreme caution in considering whether to drop a criterionopposite-sex spousesthat was the assumed baseline for hundreds of federal statutes enacted by previous Congresses, and that has always and everywhere been an essential element of such an enormously important social concept as marriage. House Mem. 26; see 150 Cong. Rec. S7994 (2004) (Sen. Clinton) (marriage is not just a bond but a sacred bond between a man and a woman and is the fundamental bedrock principle that exists between a man and a woman, going back into the midst of history as one of the foundational institutions of history and humanity and civilization). Under any level of scrutiny, this concern would sustain DOMA against an equal protection challenge. Congress was certainly permitted to preserve the uniform definition of marriage on which such a vast array of federal statutes were predicated. And its valid and specifically declared purpose of
nurturing the foundational institution of marriage, and all the social benefits that flow from it, H.R. Rep. 104-664 at 12-15 (1996), would more than justify its acting with extreme caution in introducing an innovation to that institution whose effects are unknown for the simple reason that 22 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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it has never been tried before very recently. Caution is surely appropriate in redefining such a foundational institution. Caution may not be an end in itselfinstead, the benefits that marriage offers to society are the endbut in this context it is a rational basis.16 Plaintiff argues that [s]ince the enactment of DOMA, 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. Pl.s Oppn at 24 (quoting Gill, 699 F. Supp. 2d at 388). But even assuming for a moment that there really is such a consensusa highly dubious proposition in the context of this divisive issuethe very fact that it has emerged only in the years since enactment underscores the rationality of Congresss concern. The Congress that enacted DOMA could not be found
irrational for failing to predict this supposed consensus, and even a current Congress could rationally conclude that the supposed consensus is of far too recent a vintage to justify a major change in an age-old institution of foundational importance to society. It bears emphasis that any empirical evidence in support of same-sex marriage results from studies conducted over a very small number of very recent decades. As an empirical matter, the long-term social consequences of granting legal recognition to same-sex relationships remain completely unknown.17 In these circumstances, Congress was amply justified in waiting
While we have primarily argued in this motion that DOMA survives rational basis review, for the same reasons stated above, DOMA survives intermediate and heightened scrutiny. 17 The allegation in Plaintiffs complaint that sexual orientation bears no relation whatsoever to an individuals ability to participate in or contribute to society, Second Amended Compl. at 40, does not preclude this inquiry, as the Federal Rules do not require courts to credit a complaints conclusory statements without reference to its factual context. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009). This pleading does not even address the issue at hand, which is whether same-sex romantic and parenting relationships are so indistinguishable from traditional ones that any legislative distinction drawn between them is arbitrary. 23 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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for evidence spanning a longer termat least one full adult lifespanbefore engaging in what it reasonably could regard as a major redefinition of a foundational social institution. See 150 Cong. Rec. S2836 (2004) (Sen. Cornyn) (The institution of marriage is just too important to leave to chance.); 150 Cong. Rec. S7887 (2004) (Sen. Frist) (calling same-sex marriage a vast untested social experiment); 152 Cong. Rec. S5473 (2006) (Sen. Talent) (the evidence is not even close to showing that we can feel comfortable making a fundamental change in how we define marriage.). 3. DOMA is Rationally Based on Biological Differences and Furthers the Government Interest in Incentivizing Childrearing by Parents of Both Sexes.
For the same reasons, and contrary to Plaintiffs contentions, see Pl.s Oppn at 24-25, it was far from arbitrary for Congress to decline to sign on to the extremely recent alleged consensus that either a father or a mother is optional in the optimal child-rearing situation. As the House noted in its Memorandum in Support of it Motion to Dismiss, id. at 25, opposite-sex spouses are biologically different from same-sex spouses: the former generally are capable of procreating with each other and the latter are not. Most sexually-active opposite-sex
relationships have an inherent tendency to produce children whether or not the man and woman are seeking to do so at any given time. Congress could rationally have concluded that a special legal category was necessary to recognize the special concerns that face a couple who must take account of this inherent tendency of their relationship, and to support and incentivize such relationships despite the increased responsibility they place upon the parties. See 150 Cong. Rec. S683 (2004) (Sen. Cornyn) (traditional marriage has been found over countless years to benefit children, to provide a stable emotional and economic foundation for children so they can prosper and become responsible, productive adults). 24 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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Congress could rationally conclude that each child will greatly benefit from having a role model of his or her own sex as a parent, and from being exposed within the family to how that parent relates to an adult of the opposite sex. House Mem. 26-27; see 150 Cong. Rec. S1507 (2004) (Sen. Cornyn) (opposite-sex marital family provides role models for children); 150 Cong. Rec. S7960 (2004) (Sen. Talent) (noting that one thing that two people of the same sex cannot give children is a mom and a dad) (emphasis added); 150 Cong. Rec. H7892 (2004) (Rep. Akin) ([W]e all know from experience that kids are best off when they have a mom and a dad.). But while some same-sex couples may prove capable parents in many other regards, children raised by them will inevitably miss out on one or both of these benefits. Plaintiff argues that these justifications are unpersuasive because the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country, and the federal government has never considered denying recognition to marriage based on an ability or inability to procreate. Pl.s Opp at 26; Gill, 699 F. Supp. 2d at 389. Under rational basis review, however, the only requirement is that the line drawn be non-arbitrary: [e]ven if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this perfection is by no means required. Vance, 440 U.S. at 108 (internal quotation marks omitted); see Beach
Commcns, 508 U.S. at 315-16 (the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration) (internal brackets and quotation marks omitted). Insofar as not a single same-sex couple is able to procreate by natural means, whereas the large majority of traditionally-married couples are, the line drawn by Congress is plainly non-arbitrary with respect to the procreative potential of a relationship.
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4.
Congress Desired to Avoid Creating a Social Understanding That the Begetting and Rearing of Children is not Inextricably Bound up With Marriage.
Plaintiff contends that reserving marital benefits for traditional marriages does not encourage responsible procreation because it does not perforce limit who can become a parent. Pl.s Oppn at 26. This is an unwarranted truncation of the rational-basis inquiry, and does not even do justice to actual concerns entertained by Congress. Whether or not persons in same-sex relationships become parents, Congress could rationally have been concerned that, by undermining the logic and message that children are a central reason why the state recognizes marriage, expanding marital rights beyond traditional marriages would lead to an increase in the number of children being raised outside any kind of marital context. See House Mem. 26-27; cf. 150 Cong. Rec. S7922 (2004) (Sen. Cornyn) ([C]ountless statistics and research attest to the fact that when marriage becomes less important because it is expanded beyond its traditional definition to include other arrangements, that untoward consequences such as greater out-of-wedlock births occur.); 150 Cong. Rec. S7927 (2004) (Sen. Brownback) (There is a real question about the future of societies that do not uphold traditional marriage.).18
In 2004 Congress heard testimony vividly illustrating the impact on communities of racial minorities of the corrosion of the social sense that children are a fundamental purpose of marriage. Although this testimony obviously was not before Congress as a formal matter in 1996 when it enacted DOMA, [t]he absence of legislative facts explaining the distinction on the record has no significance in rational-basis analysis, because a legislative choice . . . may be based on rational speculation unsupported by evidence or empirical data. Beach Commcns, 503 U.S. at 315 (citation, quotation marks, and brackets omitted). See Judicial Activism vs. Democracy: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Property Rights of the S. Comm. on Judiciary, 108th Cong. 10-11 (2004) (statement of Rev. Richard Richardson, Black Ministerial Alliance of Greater Boston); id. at 12-15 (statement of Pastor Daniel de Leon, Alianza de Ministerios Evangelicos Nacionacles). Members of Congress also expressed a concern in 2004 that legal recognition of same(continued .) 26 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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C.
Congress is not Constitutionally Required to Accept any and all Definitions of Marriage and Spouse Adopted by the States.
Despite having virtually no support in precedent, Plaintiff attempts to argue that the federal government has no legitimate interest in defining what qualifies as a marriage, and who qualifies as a spouse, for purposes of federal law. As Plaintiff herself asserts, however, she already is married under state law, Pl.s Oppn at 17 n.16, and DOMA by its terms has no effect on that fact. Instead, Plaintiffs claim seems to be that if Congress chooses to use the words marriage or spouse (or presumably any other family-law term) in legislation, the Constitution leaves it no choice but to accept wholesale whatever meanings the 50 states choose to give to those terms. This contention is wrong as a matter of logic, history, and precedent. Logically, any such rule would be either purely semantic or else utterly unworkable. If
interpreted leniently, Congress would remain free to define whatever categories of family relationships it wished so long as it simply avoided labeling those categories with traditional family-law terms such as marriage. On the other hand, if interpreted strictly, it would require an impossibly slippery judicial inquiry into whether the substance of any given federally-defined relationship crossed the line into the area of family law marked states only, so that regardless sex relationships has had precisely this effect in Scandinavia and the Netherlands. See 150 Cong. Rec. S7921 (2004) (Sen. Cornyn) (Today, about 15 years after Denmark created this new institution [in 1989], a majority of children in Scandinavia are born out of wedlock, including more than 50 percent in Norway, and 55 percent of the children in Sweden, and in Denmark, a full 60 percent of first-born children have unmarried parents. In Scandinavia, as a whole, traditional marriage is now an institution entirely separated from the idea of child rearing or childbearing or child-rearing . . . .); 150 Cong. Rec. H7912 (2004) (Rep. Pence) (In some parts of Norway, as many as 80 percent of first-born children and two-thirds of subsequent children are now born out of wedlock.). Members of Congress noted the publication in July 2004 of an open letter by five Dutch scholars cautioning that, while definitive scientific evidence does not yet exist, there are good reasons to believe the decline in Dutch marriage may be connected to the successful public campaign for the opening of marriage to same-sex couples in The Netherlands. 150 Cong. Rec. S7928 (2004). In enacting DOMA, Congress rationally could have been concerned to prevent a similar phenomenon in this country. 27 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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of what Congress denominated it or intended in this regard, it would be supplanted by a patchwork of 50 varying state-law definitions. Under this rule Congress would have no choice but to swallow any innovation, no matter how radical, that a state might adopt in the field of family law. The inevitable result would be that Congress, rather than surrendering control to the states of the meaning and effect of large chunks of federal law, would simply cease to recognize family relationships in legislation whenever it could possibly be avoided. Such a rule would also be inconsistent with Congresss long history of enacting laws creating unique federal definitions of the terms marriage and spouse. The federal tax code, for instance, excludes some couples living apart from its definition of married persons even if those couples are married under state law. 26 U.S.C. 7703(b). The Social Security Act includes detailed definitions of the words spouse, wife, widow, divorce, child, husband, and widower, giving these terms meanings that inevitably will vary from state definitions. 42 U.S.C. 416; 26 U.S.C. 7703(b). The same is true of a number of statutes providing benefits to federal employees. See 5 U.S.C. 8101(6)-(11), 8341(a)(1)(A)-(a)(2)(A). And in immigration law Congress has seen fit to superimpose anti-fraud criteria over state-law definitions of marriage, thus excluding some state-law marriages from the federal definition. 8 U.S.C. 1186a(b)(1). Although many of these statutes are many decades old, Plaintiff points to nothing that would even hint at their illegitimacy. Finally, the cases cited by Plaintiff do not at all stand for the proposition that Congress has no constitutional power to define these terms for purposes of federal statutes. For example, in De Sylva v. Ballentine, the Court noted that [t]he scope of a federal right is, of course, a federal question. 351 U.S. 570, 580 (1956). The Court made clear that the lack of a federal definition of the words spouse and child as they appeared in the statute there in question was 28 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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not a matter of constitutional command, but instead was dictated by the general scheme of the statute that Congress has enacted. Id. It even acknowledged that if a state were to use the word children in a way entirely strange to those familiar with its ordinary usage, this would not come within the federal meaning of the term. Id.19 Other cases cited by Plaintiff are simply inapposite, giving no indication that a federal statute defining any family-law term might have any bearing on the legal relationship in question. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); Sosna v. Iowa, 419 U.S. 393 (1975). And United States v. Morrison, 529 U.S. 598, 618 (2000), and United States v. Lopez, 514 U.S. 549, 564 (1995), stand only for the proposition that Congress cannot regulate family law merely because it has an appreciable aggregate impact on interstate commercenot that Congress may not determine which family relationships it should define and acknowledge for the limited purpose of the administration of other, independently valid, exercises of federal power. CONCLUSION Since the enactment of DOMA in 1996, the debate over the definition of marriage has continued in towns and cities across the nation, in the press and the academy, and at virtually every level of government.20 These fora permit the advancement and discussion of considered arguments on both sides of the issue. By contrast, when Plaintiffs and even the Department of Justice ask the courts to intervene in this debate, they seek to cut off debate by rejecting positions that differ from their ownincluding the position of hundreds of Members of Congress, many of
Justice Douglas, concurring, expressly noted that whether or not to adopt the state-law meaning of family-law terms was entirely the choice of Congress. Id. at 583. 20 Even in Congress, the debate over DOMA continues. Leahy Plans Congressional Hearing on Law that Bans Gay Marriage, Burlington Free Press, July 12, 2011. 29 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
19
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them still in officeas motivated by animus and being irrational. The government and the people of the United States would not be well served if the courts were to endorse this approach. The Court should grant the Motions to Dismiss in full and direct that judgment be entered for defendants. Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC21 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for The Bipartisan Legal Advisory Group of the U.S. House of Representatives Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel
Bancroft PLLC has been specially retained by the Office of General Counsel of the House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its attorneys are, therefore, entitled, for the purpose of performing [that] function[], to enter an appearance in any proceeding before any court of the United States . . . without compliance with any requirement for admission to practice before such court . . . . 2 U.S.C. 130f(a). Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher Bartolomucci, Esq., and Conor B. Dugan, Esq. 30 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISSCASE NO. 3:10-CV-0257-JSW
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Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax) July 15, 2011
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CERTIFICATE OF SERVICE I certify that on July 15, 2011, I served one copy of the Bipartisan Legal Advisory Group of the U.S. House of Representatives Reply Memorandum of Points and Authorities in Support of Motion to Dismiss by CM/ECF, by electronic mail (.pdf format), and by first-class mail, postage prepaid, on the following:
James R. McGuire, Esq. Gregory P. Dresser, Esq. Rita F. Lin, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Jon W. Davidson, Esq. Tara L. Borelli, Esq. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010-1729 Christopher R. Hall, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch Room 7128 20 Massachusetts Ave., N.W. Washington, DC 20001
/s/ Kerry W. Kircher Kerry W. Kircher
INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS CASE NO. 3:10-CV-0257-JSW

United States District Court Northern District of California San Francisco Division

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Case3:10-cv-00257-JSW Document150

KAREN GOLINSKI, Plaintiff,

vs. UNITED STATES OFFICE OF PERSONNEL

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS

use of rational-basis review here.

In addition, the High Tech Gays court concluded that

DOMA Does not Discriminate Based on Sex.

/s/ Kerry W. Kircher Kerry W. Kircher

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