Case3:10-cv-00257-JSW Document186 Filed02/22/12 Page1 of 43

United States District Court For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KAREN GOLINSKI,

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Plaintiff,

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No. C 10-00257 JSW

v.

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UNITED STATES OFFICE OF PERSONNEL

12 MANAGEMENT and JOHN BERRY, Director

ORDER

of the United States Office of Personnel

13 Management, in his official capacity,

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Defendants.

/

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16

Now before the Court are the motion to dismiss and the motion to strike filed by

17 Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of

18 Representatives (“BLAG”) and the motion for summary judgment filed by Plaintiff Karen

19 Golinski (“Ms. Golinski”). Defendants the United States Office of Personnel Management

20 (“the OPM”) and John Berry, its director, also filed a motion to dismiss and a response to

21 BLAG’s motion to dismiss. These motions compel the Court to determine whether the Defense

22 of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms. Golinski, violates the United

23 States Constitution by refusing to recognize lawful marriages in the application of laws

24 governing benefits for federal employees. Having considered the parties’ papers, relevant legal

25 authority, and the record in this case, the Court HEREBY DENIES BLAG’s motion to dismiss;

26 DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary

27 judgment; and GRANTS the OPM’s motion to dismiss.

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1

BACKGROUND

2

The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions

3 Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit.

4 (Second Amended Complaint (“SAC”) at ¶ 18.) Ms. Golinski has been partners with Amy

5 Cunninghis (“Ms. Cunninghis”) for over twenty years. They registered as domestic partners

6 with the City and County of San Francisco in 1995, and with the State of California in 2003.

7 (Id. at ¶¶ 15-17.) On August 21, 2008, they were legally married under the laws of the State of

8 California. (Id. at ¶ 17.)

9

Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing

10 family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which

11 she purchases through her employer and which already covers the couple’s adopted minor child.

12 (Id. at ¶¶ 19, 22.) The Administrative Office of the United States Courts (“AO”) refused to

13 process her request on the basis that Ms. Golinski and her spouse are both women. (Id. at ¶ 23.)

14 Finding that she could not secure comparable health insurance coverage, on October 2, 2008,

15 Ms. Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution

16 (“EDR”) Plan, and contended that the refusal to grant her health benefits was a violation of the

17 Plan’s nondiscrimination provision. (Id. at ¶ 48.) The EDR Plan specifically prohibits

18 employment discrimination based on, among other things, sex or sexual orientation. (Id. at ¶

19 47.)

20

By orders dated November 24, 2008 and January 13, 2009, Chief Judge Alex Kozinski,

21 sitting in his administrative capacity as arbiter of the Judicial Council, found that Ms. Golinski

22 had suffered discrimination under the Court’s EDR Plan and ordered the AO to process her

23 health benefit election forms. (Id., Exs. A, B.) Chief Judge Kozinski found that the denial of

24 health benefits was based solely on the grounds of sex and sexual orientation, in direct violation

25 of the EDR Plan’s non-discrimination provision covering Ninth Circuit employees. (Id., Ex. B

26 at 1-2.) Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had

27 the discretion to extend health benefits to Ms. Golinski’s same-sex spouse by interpreting the

28 terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage

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1 eligibility. (Id. at 2-3.) Chief Judge Kozinski ordered the AO “to submit Karen Golinski’s

2 Health Benefits Election form 2089 ... to the appropriate insurance carrier. Any future health

3 benefit forms are also to be processed without regard to the sex of the listed spouse.” (Id., Ex.

4 B at 7.)

5

The AO complied, but the OPM instructed Ms. Golinski’s insurance carrier not to

6 comply with the Ninth Circuit Judicial Council’s remedial order. The OPM directed the AO

7 and the Blue Cross and Blue Shield Service Benefit Plan not to process Ms. Golinski’s request

8 on the basis that federal law, specifically Section 3 of DOMA, defines spouse as a member of

9 the opposite sex and, accordingly, proscribes the enrollment of Ms. Golinski’s same-sex spouse

10 in her health benefits program.

11

In response, on November 19, 2009, Chief Judge Kozinski issued another order

12 addressing the OPM’s conduct. The Chief Judge, again sitting as an administrator, held that he

13 had the authority, under both the Ninth Circuit’s EDR Plan and the separation of powers

14 doctrine, to interpret the laws applicable to judicial employees in a manner that would displace

15 “any contrary interpretation by an agency or an officer of the Executive.” (Id., Ex. C at 14-15.)

16 Chief Judge Kozinski held that allowing the OPM to interfere with his orders would be

17 tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary’s]

18 autonomy.” (Id. at 11.) The Chief Judge further held that “[o]rdering enrollment is proper and

19 within my jurisdiction because Congress intended [the EDR] tribunal to be the sole forum for

20 adjudicating complaints of workplace discrimination by employees of the Judiciary. With that

21 responsibility must come power equal to the task.” (Id. at 9.)

22

Chief Judge Kozinski granted Ms. Golinski both back pay and prospective relief. The

23 injunctive relief required that the OPM “rescind its guidance or directive to the Blue Cross and

24 Blue Shield Service Benefit plan and any other plan that Ms. Golinski’s wife is not eligible to

25 be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program

26 because of her sex or sexual orientation, or that the plans would violate their contracts with the

27 OPM by enrolling Ms. Golinski’s wife as a beneficiary” and “[c]ease at once its interference

28 with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health

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United States District Court For the Northern District of California

1 plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms.

2 Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way

3 with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual

4 orientation.” (Id. at 15-16 (emphasis in original).)

5

The Chief Judge, in his order dated November 19, 2009, also invited the OPM to

6 “appeal so much of this order as concerns it using the procedures outlines in the [EDR] plan.”

7 (Id. at 16.) In response, the OPM did not appeal the order, but instead issued a press release

8 indicating that it was under no obligation to comply with the administrative order and, although

9 in favor of its repeal, indicated that the Executive agency was tasked with enforcing DOMA,

10 which prohibits same-sex spouses of federal employees from enrolling in the federal health

11 benefits program. (Id., Ex. F.)

12

In his final administrative order, dated December 22, 2009, Chief Judge Kozinski stated

13 that the time for appeal had expired, thus rendering his prior orders in the matter “final and

14 preclusive on all issues decided therein.” (Id., Ex. D.) He further authorized Ms. Golinski to

15 pursue any action she deemed fit against the OPM, including filing a mandamus action in the

16 district court. (Id.)

17

On January 20, 2010, Ms. Golinski filed a mandamus action before this Court, seeking

18 to have the OPM rescind its guidance to Blue Cross and Blue Shield Service Benefit Plan to

19 deny Ms. Golinski’s wife benefits as precluded by DOMA and to comply with Chief Judge

20 Kozinski’s prior orders in her administrative claim.

21

On January 26, 2010, Ms. Golinski moved for a preliminary injunction seeking

22 compliance with Chief Judge Kozinski’s order dated November 19, 2009, requiring that the

23 OPM: (1) “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit

24 Plan,” and (2) “cease at once its interference with the jurisdiction of this tribunal” and “not

25 advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit plan, that

26 providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law.” (Id. at

27 Ex. C, 15-16.)

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United States District Court For the Northern District of California

1

On May 10, 2010, the OPM moved to dismiss the First Amended Complaint on the basis

2 that this Court lacked jurisdiction to grant mandamus relief under these peculiar procedural

3 circumstances.

4

While those motions were pending and after the parties submitted supplemental briefing

5 on the issue of the constitutionality of DOMA, on February 23, 2011, at the direction of

6 President Obama, Attorney General Eric Holder announced that the Justice Department would

7 cease its legal defense of Section 3 of DOMA. Although it determined that the statute was

8 unconstitutional and resolved not to continue to defend DOMA in pending court cases, the

9 Justice Department indicated that it did intend to continue to enforce the law unless it was either

10 repealed by Congress or the courts rendered a final judgment striking it down. (See Plaintiff’s

11 Notice of Supplemental Authority (“NSA”) dated February 23, 2011, Ex. 2.)

12

On March 16, 2011, the Court granted the motion to dismiss on the basis that it lacked

13 jurisdiction to issue mandamus relief. Finding that amendment would not necessarily be futile,

14 the Court dismissed the matter with leave to amend.

15

On April 14, 2011, Ms. Golinski filed her Second Amended Complaint in which she

16 directly challenges the discrimination against her as a lesbian married to someone of the same

17 sex. (SAC at ¶ 1.) In her amended complaint, Ms. Golinski alleges an action for declaratory

18 and injunctive relief pursuant to 28 U.S.C. Sections 2201-2202 and Federal Rule of Civil

19 Procedure 57 and for review of an agency action pursuant to 5 U.S.C. Sections 701-706. (Id. at

20 ¶ 7.) By her amended complaint, Ms. Golinski seeks a determination that Section 3 of DOMA,

21 1 U.S.C. Section 7, as applied to her, violates the United States Constitution by refusing to

22 recognize lawful marriages for the purposes of application of the laws governing benefits for

23 federal employees. (Id.) Ms. Golinski alleges that as a result of the violation of the

24 Constitution, she has been denied, and will continue to be denied, legal protections and benefits

25 under federal law that would be available to her if she were a heterosexual with a opposite-sex

26 spouse. (Id.)

27

The majority of a five-member committee in Congress voted to defend DOMA and, on

28 May 4, 2011, BLAG sought to intervene in this matter. On June 3, 2011, this Court issued an

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1 order granting BLAG’s unopposed motion to intervene as a party-defendant for the limited

2 purpose of defending the constitutionality of Section 3 of DOMA.

3

On June 3, 2011, BLAG moved to dismiss the Second Amended Complaint on the basis

4 that Ms. Golinski fails to state a claim upon which relief may be granted because, as a matter of

5 law, Section 3 of DOMA does not violate her rights under the equal protection component of

6 the Due Process Clause of the Fifth Amendment. On the same date, the OPM moved to dismiss

7 Ms. Golinski’s claim as set forth in the Second Amended Complaint only insofar as any claims

8 could reasonably be construed to assert a statutory claim as to the language of the Federal

9 Health Benefits Act of 1959. On July 1, 2011, Ms. Golinski moved for summary judgment. On

10 July 15, 2011, BLAG moved to strike extrinsic materials from the record on Ms. Golinski’s

11 opposition to the motion to dismiss. The Court heard oral argument on the motions on

12 December 16, 2011.1

13

The Court shall address additional facts as necessary in the remainder of this order.

14

ANALYSIS

15 A. Legal Standards.

16

1. Motion to Dismiss.

17

A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the

18 pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited

19 to the allegations in the complaint, which are accepted as true and construed in the light most

20 favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

21 Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the claim

22 showing that the pleader is entitled to relief.” Even under Rule 8(a)’s liberal pleading standard,

23 “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

24 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

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1 Initially, BLAG moved to strike several declarations submitted by Ms. Golinski in

response to the motion to dismiss. However, as the Court decides the motion for summary 28 judgment and has therefore considered the full record, BLAG agreed to withdraw its motion

to strike. The motion to strike is therefore DENIED as moot.

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1 not do.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v.

2 Allain, 478 U.S. 265, 286 (1986)).

3

Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but

4 must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at

5 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

6 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

7 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at

8 556). “The plausibility standard is not akin to a probability requirement, but it asks for more

9 than a sheer possibility that a defendant has acted unlawfully. ... When a complaint pleads facts

10 that are merely consistent with a defendant’s liability, it stops short of the line between

11 possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 556-57)

12 (internal quotation marks omitted). If the allegations are insufficient to state a claim, a court

13 should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton

14 Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss and Liehe, Inc. v. Northern

15 California Collection Service, Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).

16

As a general rule, “a district court may not consider any material beyond the pleadings

17 in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994),

18 overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)

19 (citation omitted). The Court may consider the facts alleged in the complaint, documents

20 attached to the complaint, documents relied upon but not attached to the complaint, when the

21 authenticity of those documents is not questioned, and other matters of which the Court can take

22 judicial notice. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009).

23 Documents whose contents are alleged in a complaint and whose authenticity no party

24 questions, but which are not physically attached to the pleading, may be considered in ruling on

25 a Rule 12(b)(6) motion to dismiss. Such consideration does not convert the motion to dismiss

26 into a motion for summary judgment. See United States v. Ritchie, 343 F.3d 903, 908 (9th Cir.

27 2003); Branch, 14 F.3d at 454.

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2. Motion for Summary Judgment.

2

A motion for summary judgment is guided by a different standard. Summary judgment

3 is appropriate when the record demonstrates “that there is no genuine issue as to any material

4 fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

5 An issue is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the

6 non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “[A]t the

7 summary judgment stage the judge’s function is not ... to weigh the evidence and determine the

8 truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. A fact

9 is “material” if it may affect the outcome of the case. Id. at 248. The party moving for

10 summary judgment bears the initial responsibility of identifying those portions of the record

11 which demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett,

12 477 U.S. 317, 323 (1986). In the absence of such facts, “the moving party is entitled to a

13 judgment as a matter of law.” Celotex, 477 U.S. at 323.

14

Once the moving party meets this initial burden, the non-moving party “may not rest

15 upon the mere allegations or denials of the adverse party’s pleading, but the adverse party's

16 response, by affidavits or as otherwise provided in this rule, must set forth specific facts

17 showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). If the non-moving party

18 fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex,

19 477 U.S. at 323.

20 B. Defense of Marriage Act.

21

This action presents a challenge to the constitutionality of Section 3 of DOMA as

22 applied to Ms. Golinski, a lesbian woman married under California law, who is unable to secure

23 federal health benefits for her same-sex spouse. Specifically, Ms. Golinski alleges that, by

24 operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits

25 that are available to similarly-situated opposite-sex couples, in violation of her rights to equal

26 protection and due process as secured by the Due Process Clause of the Fifth Amendment.

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1

In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of

2 DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for

3 purposes of federal law. Section 3 provides:

4

In determining the m eaning of any Act of Congress, or of any ruling,

regulation, or interpretation of the various adm inistrative bureaus and

5

agencies of the United States, the word “marriage” means only a legal union

between one m an and one woman as husband and wife, and the word

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“spouse” refers only to a person of the opposite sex who is a husband or a

wife.

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1 U.S.C. § 7.

8

In large part, the enactment of DOMA can be understood as a direct legislative response

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to Baehr v. Lewin, a 1993 decision issued by the Hawaii Supreme Court, which indicated that

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same-sex couples may be entitled to marry under that state’s constitution. 74 Haw. 530 (1993).

11

The decision raised the possibility that, for the first time, same-sex couples could begin the

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process of obtaining state-sanctioned marriage licenses.

13

In debating the provisions of DOMA, the House referenced the Baehr decision as the

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beginning of an “orchestrated assault being waged against traditional heterosexual marriage”

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and expressed concern that the development “threaten[ed] to have very real consequences ... on

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federal law.” H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905,

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2906-07 (“H. Rep.” or “House Report”). More specifically, the House Report warned that “a

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redefinition of marriage in Hawaii to include homosexual couples could make such couples

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eligible for a whole range of federal rights and benefits.” Id. at 10. Although a later

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amendment to the Hawaii constitution withheld permitting same-sex marriage in the state,

21

Congress, explicitly in reaction to the impending Hawaii decision, sought a means both (1) to

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“reserve[] each State’s ability to decide” what should legally constitute a valid marriage under

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its own state laws, and (2) to “lay[] down clear rules” regarding what constitutes a marriage for

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purposes of federal law. Id. at 2.

25

In Section 2 of DOMA, Congress, by virtue of the express grant of authority under the

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second sentence of the Full Faith and Credit Clause, permitted a state to decline to give effect to

27

the laws of other states respecting same-sex marriage. In enacting Section 3 of DOMA, the

28

House Report explained that the statute codifies the definition of marriage set forth in “the

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1 standard law dictionary,” for purposes of federal law. Id. at 29 (citing Black’s Law Dictionary

2 972 (6th ed. 1990)).

3

The legislative history reveals that Congress acknowledged the constraints imposed by

4 federalism on the determination of who may marry, which has always been uniquely the

5 province of state law. Nonetheless, Congress asserted that it was not “supportive of (or even

6 indifferent to) the notion of same-sex marriage,” and it embraced DOMA as a step toward

7 furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual

8 marriage.” Id. at 12. “Although DOMA drastically amended the eligibility criteria for a vast

9 number of different federal benefits, rights, and privileges that depend upon marital status, the

10 relevant committees did not engage in a meaningful examination of the scope or effect of the

11 law.” Gill v. Office of Personnel Management, 699 F. Supp. 2d 374, 379 (D. Mass. 2010).2

12 Although drastically altering the benefits structure based on state definitions of marriage and

13 the federalist balance in the area of domestic relations, Congress did not hear testimony from

14 agency heads about the effect of DOMA on federal programs, or from historians, economists, or

15 specialists in family or child welfare. Id.

16

It is clear and undisputed that the federal health benefits Ms. Golinski seeks in trying to

17 add her wife as a beneficiary under her health benefits plan falls under the reach of DOMA.

18 The Federal Employees Health Benefits Program (“FEHB”) is a comprehensive program

19 providing health insurance for federal civilian employees and their family members. 5 U.S.C. §

20 8905. The OPM administers the FEHB and negotiates contracts for coverage with potential

21 carriers and sets the premiums for each plan. Id., §§ 8902, 8903, 8906. A federal employee

22 enrolled in the FEHB chooses a carrier and plan and may determine whether to enroll for an

23 individual plan, named “self only,” or for “self and family” coverage which, under the OPM’s

24 regulations, “includes all family members who are eligible to be covered by the enrollment.” 5

25 C.F.R. § 890.302(a)(1). Under the FEHB, a “member of family” is defined as either “the

26
2 In January 1997, the General Accounting Office issued a report clarifying the 27 scope of DOMA’s effect and concluded that the law implicated at least 1,049 federal laws,
including those related to entitlement programs like Social Security, health benefits and 28 taxation. A further study in 2004 found that 1,138 federal laws tied benefits, protections,
rights, or responsibilities to marital status. See Gill, 699 F. Supp. 2d at 379.

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1 spouse of an employee ... [or] an unmarried dependent child under 22 years of age.” 5 U.S.C. §

2 8901(5). An employee enrolled under an individual plan may change to family coverage by

3 submitting documentation to the employing office during the annual open season period or

4 within sixty days of a change in family status, such as change in marital status. Id., § 8905(f); 5

5 C.F.R. §§ 890.301(f), (g).

6

Within sixty days of her marriage, Ms. Golinski sought to enroll her wife as a

7 beneficiary of the family health plan. The OPM found Ms. Cunninghis was ineligible to qualify

8 as a member of the family because, under DOMA, she did not qualify as a spouse of an

9 employee.3 The question before the Court is whether Section 3 of DOMA, as applied to Ms.

10 Golinski, violates constitutional principles of equal protection.

11 C. Equal Protection Analysis and Standard of Review.

12

The “Equal Protection Clause of the Fourteenth Amendment commands that no State

13 shall deny to any person within its jurisdiction the equal protection of the laws, which is

14 essentially a direction that all persons similarly situated should be treated alike.” City of

15 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (internal citations omitted).

16 Although the Fifth Amendment to the United States Constitution does not contain an Equal

17 Protection Clause, the Fifth Amendment’s Due Process Clause includes an equal protection

18 component. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954); see also Buckley v. Valeo,

19

20

3 At the administrative appeal from the denial of benefits, Chief Judge Kozinski

found that the FEHB statute confers on the OPM the discretion to extend health benefits to 21 same-sex couples by interpreting the terms “family members” and “member of the family” to

set a floor, not a ceiling, to coverage eligibility. (SAC, Ex. B at 2-3.) The Court finds this 22 reasoning unpersuasive.

23

Where the statute unambiguously defines a term such as “member of family” to mean

spouse (or dependent child under 22 years old), that definition controls to the exclusion of 24 any meaning that is not explicitly stated in the definition. See Colautti v. Franklin, 439 U.S.

379, 393 n.10 (1979); see also TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001) (holding 25 that, for purposes of statutory construction, expression of one thing is the exclusion of the

other). DOMA offers the same clarity and defines “spouse” for the purposes of determining 26 the meaning of federal legislation as “a person of the opposite sex who is a husband or a

wife.” 1 U.S.C. § 7. Confronted with such unambiguous statutory language, the Court is not 27 persuaded that the FEHB statute could provide the OPM with the discretion to provide health

benefits to same-sex couples. See In re Levenson, 587 F.3d 925, 930-31 (9th Cir. 2009); 28 Gill, 699 F. Supp. 2d at 385-86. This disposes of Ms. Golinski’s remaining statutory claim

and the OPM’s motion to dismiss that claim, to the extent it is still asserted, is GRANTED.

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1 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as

2 that under the Fourteenth Amendment.”).

3

“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v.

4 Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)

5 (Harlan, J., dissenting)). This principle embodies a commitment to neutrality where the rights

6 of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764

7 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011) (citing Romer, 517 U.S. at 623.) It is because of this

8 commitment to neutrality that legislative provisions which arbitrarily or irrationally create

9 discrete classes cannot withstand constitutional scrutiny. Romer, 517 U.S. at 623. “Equal

10 protection of the laws is not achieved through indiscriminate imposition of inequalities.”

11 Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22

12 (1948)). “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal

13 laws.’” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v.

14 Hopkins, 118 U.S. 356, 369 (1886)).

15

However, courts must balance this mandate with the “practical necessity that most

16 legislation classifies for one purpose or another, with resulting disadvantage to various groups

17 or persons.” Romer, 517 U.S. at 631 (citations omitted). The equal protection guarantee

18 preserves a measure of power to the state and the federal government to enact legislation that

19 classifies certain groups. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256,

20 271-72 (1979). In an attempt to reconcile the promise of equal protection with the reality of

21 lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a

22 fundamental right or target a suspect class, such as those based on race, national origin, sex or

23 religion. Romer, 517 U.S. at 631. To these groups of protected classifications, subject to a

24 heightened scrutiny, the government is required to demonstrate that the classification is

25 substantially related to an important governmental objective. See Clark v. Jeter, 486 U.S. 456,

26 461 (1988). Laws that do not burden a protected class or infringe on a constitutionally

27 protected fundamental right are subject to rational basis review. Romer, 517 U.S. at 631.

28 Under the rational basis review, a law must be rationally related to the furtherance of a

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1 legitimate governmental interest. Id. (citing Heller v. Doe by Doe, 509 U.S. 312, 319-320

2 (1993)).

3

In resolving an equal protection challenge, the Court “must first determine what

4 classification has been created” by the legislation. Aleman v. Glickman, 217 F.3d 1191, 1195

5 (9th Cir. 2000); see also Lazy Y Ranch, 546 F.3d at 589. The plaintiff must show that the “law

6 is applied in a discriminatory manner or imposes different burdens on different classes of

7 people.” Lazy Y Ranch, 546 F.3d at 589 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180,

8 1187 (9th Cir. 1995)). The Court must then ascertain the appropriate level of scrutiny to

9 employ. In re Kandu, 315 B.R. 123, 142 (W.D. Wash. 2004).4

10

1. Level of Scrutiny.

11

Here, DOMA makes distinctions between legally married couples, by granting benefits

12 to opposite-sex married couples but denying benefits to same-sex married couples.

13 Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual

14 orientation. In order to determine whether sexual orientation is considered a suspect or quasi-

15 suspect class entitled to heightened scrutiny, the Court must look at various factors.5 The

16

17

4 Ms. Golinski challenges the application of DOMA because it discriminates both on

the basis of sex and on the basis of sexual orientation. (Golinski Reply on Motion for 18 Summary Judgment at 7-8.) Sexual orientation discrimination can take the form of sex

discrimination. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) 19 (“Perry”). Here, for example, Ms. Golinski is prohibited from marrying Ms. Cunninghis, a

woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not 20 serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access

to federal benefits because of her sex. But DOMA also operates to restrict Ms. Golinski’s 21 access to federal benefits because of her sexual orientation; her desire to marry another

woman arises only because she is a lesbian. Accordingly, the Court addresses the Equal 22 Protection challenge on the basis of sexual orientation.

23

5 The question of whether DOMA impacts a fundamental right is addressed briefly by

the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married 24 under state law. The failure of the federal government to recognize Ms. Golinski’s marriage

and to provide benefits does not alter the fact that she is married under state law. Thus, 25 Baker v. Nelson, 409 U.S. 810 (1972), which ostensibly addressed whether same-sex couples

have a constitutional right to marry, is irrelevant here. See Perry v. Brown, --- F.3d ---, 2012 26 WL 372713, at *17 n.14 (9th Cir. 2012) (“Perry II”).

27

However, it is established that there is a fundamental right to marry. Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law 28 affords constitutional protection to personal decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and education.... These matters, involving

13

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1 Supreme Court has considered: (1) the history of invidious discrimination against the class

2 burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a

3 typical class member’s ability to contribute to society; (3) whether the distinguishing

4 characteristics are “immutable” or beyond the class members’ control; and (4) the political

5 power of the subject class. See Varnum v. Brien, 763 N.W.2d 862, 887-88 (Iowa 2009)

6 (collecting cases).

7

No single factor for determining elevated scrutiny is dispositive. See Massachusetts

8 Board of Retirement v. Murgia, 427 U.S. 307, 321 (1976). The presence of any of the factors is

9 a signal that the particular classification is “more likely than others to reflect deep-seated

10 prejudice rather than legislative rationality in pursuit of some legitimate objective,” thus

11 requiring heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Supreme

12 Court has placed far greater weight on two factors:

13

whether the group has been the subject of long-standing and invidious

discrimination and whether the group’s distinguishing characteristic bears no

14

relation to the ability of the group members to perform or function in society. In

circumstances in which a group has been subj ect to such discrimination and its

15

distinguishing characteristic does not bear any relation to such ability, the c ourt

inevitably has employed heightened scrutiny in reviewing statutory classifications

16

targeting those groups.

17 Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 167-68 (2008).

18

19
the most intimate and personal choices a person may make in a lifetime, choices central to 20 personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision 21 to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[T]he
right to marry is of fundamental importance for all individuals.”); Loving v. Virginia, 388 22 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v. 23 Connecticut, 381 U.S. 479, 486 (1965) (“Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association 24 that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects.”). 25
The analysis of the fundamental right to marry has not depended upon the 26 characteristics of the spouse. The Supreme Court cases addressing the fundamental right to
marry do not define the fundamental right in narrow terms. In Loving, the Court defined the 27 fundamental right as the right to marry, not the right to interracial marriage. 388 U.S. at 12.
In Turner, the fundamental right was the right to marry, not the right to inmate marriage. 28 482 U.S. at 94-96. In Zablocki, the fundamental right was the right to marry, not the right of
people owing child support to marry. 434 U.S. at 383-86.

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1

2. Distinguishing High Tech Gays Finding on Standard of Review.

2

Before the Court may assess the various factors that apply to determine the appropriate

3 level of scrutiny to apply in this matter, the Court must address the holding in High Tech Gays

4 v. Defense Industrial Security Clearance Office, which addresses the standard of review for

5 classifications based on sexual orientation. 895 F.2d 563, 571 (9th Cir. 1990). In HighTech

6 Gays, decided before the Supreme Court revised much of the underlying legal preconceptions

7 upon which this case rests, the Ninth Circuit determined that the classification of homosexuals

8 lacks the indicia of a suspect or quasi-suspect category. Accordingly, the Ninth Circuit held

9 that the government need only come forth with a rational basis to sustain its classifications

10 against the gay and lesbian minority. Id.

11

However, the foundations of the Ninth Circuit’s decision in High Tech Gays have

12 sustained serious erosion by virtue of more recent decisions by the Supreme Court. When the

13 premise for a case’s holding has been weakened, the precedential import of the case is subject to

14 question. District courts are not governed by earlier appellate precedent that has been “undercut

15 by higher authority to such an extent that it has been effectively overruled by such higher

16 authority.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).

17

The linchpin of the reasoning in High Tech Gays was the precedent set by the Supreme

18 Court in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which upheld the criminalization of

19 private consensual homosexual conduct. In High Tech Gays, the Ninth Circuit concluded that,

20 based on the holding in Bowers, “because homosexual conduct can ... be criminalized,

21 homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational

22 basis review for equal protection purposes.” High Tech Gays, 895 F.2d at 571. Pursuant to

23 Supreme Court precedent in Bowers, the Ninth Circuit agreed that “it cannot logically be

24 asserted that discrimination against homosexuals is constitutionally infirm.” Id. at 571 n.6

25 (quoting Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989)). The court

26 concluded that, under the holding of Bowers, it would be anomalous to define the conduct of

27 members of a class as criminal and also find that, as a class, they were deserving of strict or

28

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1 heightened scrutiny under the Equal Protection Clause. See id. (citing Padula v. Webster, 822

2 F.2d 97, 103 (D.C. Cir. 1987)).

3

However, since the decision in High Tech Gays, the Supreme Court has overruled

4 Bowers, renounced its fundamental premise, and found that “Bowers was not correct when it

5 was decided, and it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). The

6 Lawrence Court found that majority’s moral condemnation of the intimate practices of

7 homosexual partners does not justify criminal prohibition and found those private consensual

8 practices are safeguarded by the liberty protections afforded by the Due Process Clause of the

9 Fourteenth Amendment. Id. at 574-75. Therefore, the reasoning in High Tech Gays, that laws

10 discriminating against gay men and lesbians are not entitled to heightened scrutiny because

11 homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence.

12

In addition, the court in High Tech Gays, in performing the analysis of the issue of

13 whether the legislature’s classification based on homosexuality calls for heightened scrutiny,

14 relied on the mistaken assumption that sexual orientation is merely “behavioral,” rather than the

15 sort of deeply rooted, immutable characteristic that warrants heightened protection from

16 discrimination. See High Tech Gays, 895 F.2d at 573-74. The court found that

17 “[h]omosexuality is not an immutable characteristic; it is behavioral and hence fundamentally

18 different from traits such as race, gender, or alienage, which define already existing suspect and

19 quasi-suspect classes. The behavior of such already recognized classes is irrelevant to their

20 identification.” Id. (internal citations omitted). The Supreme Court has since rejected this

21 artificial distinction, noting that its more recent precedent “have declined to distinguish between

22 status and conduct in th[e] context” of sexual orientation. See Christian Legal Society v.

23 Martinez, 130 S. Ct. 2971, 2990 (2010). In Lawrence, the Court noted that “[w]hen

24 homosexual conduct is made criminal by the law of the State, that declaration in and of itself is

25 an invitation to subject homosexual persons to discrimination.” 539 U.S. at 575 (emphasis

26 added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies

27 only to conduct, the conduct targeted by this law is conduct that is closely correlated with being

28 homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead

16

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1 directed toward gay persons as a class.”). Accordingly, the analysis of the Ninth Circuit in

2 High Tech Gays on the appropriateness of applying heightened scrutiny to gay men and lesbians

3 because their defining characteristic is immutable has been severely undermined by more recent

4 and overriding precedent.

5

The Court finds that the outdated holding in High Tech Gays, subjecting gay men and

6 lesbians to rational basis review, is no longer a binding precedent. See Miller, 335 F.3d at 900

7 (finding that where an intervening decision of a higher court is clearly irreconcilable with a

8 Ninth Circuit decision, “district courts should consider themselves bound by the intervening

9 higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively

10 overruled.”).

11

3. The Question of Level of Scrutiny is Still Open.

12

The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether

13 classifications based on sexual orientation are suspect (or quasi-suspect). See Romer, 517 U.S.

14 at 620, 632-33 (finding that it was unnecessary to look beyond rational basis review because the

15 state’s attempt to strip gay people of all anti-discrimination protections was “a denial of equal

16 protection in the most literal sense” and because it “confound[ed] and defie[d]” rational basis

17 review.”); see also, e.g., Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011) (“We do not need

18 to decide whether heightened scrutiny might be required.”); In re Levenson, 587 F.3d at 931

19 (finding that although it is “likely that some form of heightened constitutional scrutiny applies

20 ... [, because] the denial of benefits here cannot survive even rational basis review, the least

21 searching form of constitutional scrutiny ... it is not necessary to determine whether or which

22 form of heightened scrutiny is applicable to this claim.”); Perry II, 2012 WL 372713, at *17

23 (finding that, as in Romer, the court need not apply heightened scrutiny where the proposed

24 legislation fails rational basis scrutiny); Dragovich, 764 F. Supp. 2d at 1189 (“Because the

25 Court finds that Plaintiffs state a claim under the rational basis standard, the question of whether

26 Plaintiffs are members of a protected class need not be resolved here.”). The majority of the

27 Supreme Court in Lawrence, although it declared unconstitutional the laws infringing on the

28 substantive liberty shared by gay people to engage in sexual intimacy, did not directly address

17

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1 what standard of review applies to the classification of gay and lesbian individuals. Lawrence,

2 539 U.S. at 558. And the Ninth Circuit in Witt v. Department of Air Force merely found, in the

3 context of military policy where judicial deference “is at its apogee,” that the military’s policy

4 of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir.

5 2008).

6

Because Lawrence overturned Bowers and in light of the lack of precedential value of

7 High Tech Gays, no federal appellate court has meaningfully examined the appropriate level of

8 scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level

9 of scrutiny applies to classifications based on sexual orientation is still open.

10

4. Heightened Scrutiny Should Apply.

11

The Court undertakes to analyze the factors required to demonstrate whether a particular

12 class is entitled to suspect or quasi-suspect status and therefore deserving of heightened

13 scrutiny.

14

a. History of discrimination against gay men and lesbians.

15

The first factor courts consider is whether the class has suffered a history of

16 discrimination. There is no dispute in the record that lesbians and gay men have experienced a

17 long history of discrimination. (See Declaration of George Chauncey at ¶¶ 6-103; OPM Opp.

18 Br. at 6-13.) There is also no dispute that courts have found that gay men and lesbians have

19 experienced a history of discrimination. See, e.g., High Tech Gays, 895 F.2d at 573

20 (acknowledging that “homosexuals have suffered a history of discrimination”); Witt, 527 F.3d

21 at 824-25 (noting that homosexuals have “experienced a history of purposeful unequal

22 treatment”); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009)

23 (addressing the difficulty in denying that gay men and lesbians have experienced discrimination

24 in the past in light of the Ninth Circuit’s ruling in High Tech Gays); Perry, 704 F. Supp. 2d at

25 981-82 (acknowledging extensive evidence of public and private discrimination against gay

26 men and lesbians in California and throughout the United States); see also In re Balas, 449 B.R.

27 567, 576 (Bankr. C.D. Cal. 2011) (same).

28

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1

b. Ability to contribute to society.

2

Similarly, there is no dispute in the record or the law that sexual orientation has no

3 relevance to a person’s ability to contribute to society. See Watkins v. U.S. Army, 875 F.2d 699,

4 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ability to

5 perform or contribute to society.”) (internal quotation marks omitted); Perry, 704 F. Supp. 2d at

6 1002 (concluding that “by every available metric, opposite-sex couples are not better than their

7 same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and

8 same-sex couples are equal.”).

9

c. Defining or immutable characteristics.

10

Another consideration courts find relevant in determining whether statutory provisions

11 pertaining to a particular group are subject to heightened scrutiny includes whether the

12 characteristic that defines the members of the class as a discrete group is immutable or

13 otherwise not within the members’ control. See Lyng v. Castillo, 477 U.S. 635, 638 (1986).

14

Ms. Golinski presents evidence that the characteristic of sexual orientation is immutable

15 or highly resistant to change. (See Declaration of Lisa Diamond at ¶¶ 10, 13; Declaration of

16 Letitia Anne Peplau at ¶¶ 21, 26; Rita Lin Reply Declaration (“Lin Reply Decl.”), Ex. G.)

17 Further, the consensus in the scientific community is that sexual orientation is an immutable

18 characteristic. See, e.g., G.M. Herek, et al. Demographic, Psychological, and Social

19 Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176-200 (2010) (noting

20 that in a national survey, 95 percent of gay men and 83 percent of lesbian women reported that

21 they experienced “no choice at all” or “very little choice” about their sexual orientation); see

22 also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual

23 may, through conscious decision, therapeutic intervention or any other method, change his or

24 her sexual orientation.”)

25

BLAG presents evidence demonstrating that there is some fluidity on the continuum of

26 sexuality for some individuals who identify themselves as gay or lesbian. (See Declaration of

27 Conor B. Dugan (“Dugan Decl.”), Ex. B at 36:14-38, Ex. 4, Ex. E at 320.) The evidence

28 indicates that a very small minority of the gay and lesbian population may experience a small

19

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1 amount of choice in their sexuality. (Id.) However, the vast majority of those who self-reported

2 as gay or lesbian did not experience attraction to the opposite sex at any time. (See Further

3 Declaration of Letitia Anne Peplau at ¶ 6 (“data show that only 1/2 of 1% of the male

4 participants and 1.3% of the female participants shifted from only opposite sex attraction to

5 major attraction to the same sex or vice versa.”)).

6

However, regardless of the evidence that a tiny percentage of gay men or lesbians may

7 experience some flexibility along the continuum of their sexuality or the scientific consensus

8 that sexual orientation is unchangeable, the Court finds persuasive the holding in the Ninth

9 Circuit that sexual orientation is recognized as a defining and immutable characteristic because

10 it is so fundamental to one’s identity. “Sexual orientation and sexual identity are immutable;

11 they are so fundamental to one’s identity that a person should not be required to abandon them.”

12 Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir.

13 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.

14 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing with

15 Hernandez-Montiel and finding that homosexuality is “a fundamental aspect of ... human

16 identity”); Watkins, 875 F.2d at 726 (Norris, J., concurring) (finding that the prong of

17 suspectness inquiry is satisfied when the identifying trait is “so central to a person’s identity

18 that it would be abhorrent for government to penalize a person for refusing to change [it]”); In

19 re Marriage Cases, 43 Cal.4th 757, 842 (2008) (“Because a person’s sexual orientation is so

20 integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or

21 change his or her sexual orientation in order to avoid discriminatory treatment.”) The Court

22 finds that a person’s sexual orientation is so fundamental to one’s identity that a person should

23 not be required to abandon it. Therefore, this factor weighs in favor of the application of

24 heightened scrutiny.6

25

26

6 In addition, immutability is not an absolute prerequisite to heightened scrutiny. The

Supreme Court has granted suspect class status to groups whose distinguishing characteristic 27 is not immutable. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting

immutability requirements in treating group of resident aliens as suspect class despite their 28 ability to opt out of class voluntarily); see also Miller v. Albright, 523 U.S. 420, 431 (1998)

(recognizing that because a child born out of wedlock may be “legitimated” by father, strictly

20

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1

d. Minority status and political powerlessness.

2

The final consideration employed by courts to determine whether a subject group

3 deserves heightened constitutional scrutiny is whether the subject group is “a minority or

4 politically powerless.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); see also San Antonio

5 Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973) (concluding that a class

6 comprising poor families exhibits none of the “traditional indicia of suspectness” because class

7 is not “saddled with such disabilities, or subjected to such a history of purposeful unequal

8 treatment, or relegated to such a position of political powerlessness as to command

9 extraordinary protection from the majoritarian political process.”) This factor examines relative

10 political power and seeks to answer the question whether the “discrimination is unlikely to be

11 soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440.7

12

There is no dispute in the record that gay men and lesbians are a minority of the

13 population in the United States. (See Dugan Decl., Ex. A at 13:12-14, Ex. B at 19:2-7.) The

14 only issue is whether the minority is politically vulnerable or lacking in power. The Court has

15 reviewed the evidence submitted by the parties for consideration on this factor.

16

BLAG argues that the current Administration’s reversal of position with regard to

17 defending DOMA in various courts nationwide is evidence that gay and lesbian individuals

18 have achieved political power. BLAG contends that the decision followed President Obama’s

19 receipt of a letter from the Human Rights Campaign seeking to change the Administration’s

20 position. (BLAG Opp. Br. at 12.) However, this contention is not supported by the evidence in

21
speaking illegitimacy is not an immutable characteristic); see also New Orleans v. Dukes, 22 427 U.S. 297, 303 (1976) (per curiam) (finding religious identification and alienage, despite
being changeable, to constitute suspect classes). 23
7 In High Tech Gays, the Ninth Circuit briefly addressed the factor of political 24 powerlessness: “legislatures have addressed and continue to address the discrimination
suffered by homosexuals on account of their sexual orientation through the passage of anti25 discrimination legislation. Thus, homosexuals are not without political power; they have the
ability to and do ‘attract the attention of lawmakers,’ as evidenced by such legislation.” 895 26 F.2d at 574 (citing City of Cleburne, 473 U.S. at 445). However, the very circumstance of
gay men and lesbians being required to defend their interests against legislative action is a 27 reflection of relative political weakness. (Declaration of Gary Segura (“Segura Decl.”) at ¶
14.) In addition, the standard is not whether a minority group is entirely powerless, but 28 rather whether they suffer from relative political weakness. See Rodriguez, 411 U.S. at 28;
City of Cleburne, 473 U.S. at 445.

21

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1 the record. First, this letter was sent nearly two years prior to the announcement of the

2 Administration’s current opinion. (Lin Reply Decl., Ex. H at 166:16-167:13.) Second, the

3 Department of Justice functions under an independent obligation to assess the constitutionality

4 of a statute it has been tasked to defend. By its own terms, the announcement by the

5 Department of Justice was based not on a political calculation, but rather was an independent

6 assessment of the constitutionality of DOMA. (See NSA, Ex. 1 at 1-2.) The contention that a

7 two-year-old letter from a gay rights advocacy group was the pivotal consideration in the

8 Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have

9 political power is speculative at best.

10

BLAG also argues that a “spate of recent news stories only confirms the conclusion that

11 homosexuals are far from politically powerless.” (BLAG Opp. Br. at 12.) BLAG lists the

12 nomination of four openly-gay judges, the laws in several states legalizing gay marriage, and

13 the campaign against Proposition 8 in California which garnered significant funding from

14 proponents of same-sex marriage. (Id. at 12-15.)

15

The recent articles BLAG cites are exceptions and not the rule. While President Obama

16 nominated four openly-gay judges, there are literally hundreds of federal judges nationwide.

17 Only a handful of states have successfully passed legislation legalizing same-sex marriage, and

18 only a few more have been required to afford equal marital rights to gay and lesbian individuals

19 through judicial decisions. Thirty states have passed constitutional amendments banning same-

20 sex marriage. (See OPM Opp. Br. at 15, citing National Conference of State Legislatures,

21 Same-Sex Marriage, Civil Unions and Domestic Partnerships, available

22 at http://www.ncsl.org/default.aspx?tabid_16430 (last updated February 13, 2012)). In contrast,

23 when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states.

24 See Loving, 388 U.S. at 6. Moreover, there is no federal anti-discrimination legislation and no

25 protection in most states from sexual orientation discrimination. (See OPM Opp. Br. at 6-12.)

26 Finally, while the campaign against Proposition 8 may have raised significant funds, the

27 majority of Californians still voted to alter the state constitution to strip gay and lesbian

28

22

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1 individuals of their rights. Placed in context, BLAG’s evidence does not create a question of

2 fact.

3

Despite the modest successes in remediating existing discrimination, the record

4 demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be

5 rectified by legislative means.” City of Cleburne, 473 U.S. at 440. Even BLAG, in similar

6 litigation, has admitted that “gay men and lesbians often must rely on judicial decisions to

7 secure equal rights.” (Lin Reply Decl., Exs. C and D at ¶ 32.) Ms. Golinski proffers the

8 undisputed and extensive expert testimony of Gary Segura for the proposition that gay men and

9 lesbians lack a meaningful degree of political power. (See Segura Decl. at ¶¶ 9-85.) In sum, the

10 basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired

11 policy outcomes and to prevent undesirable outcomes on fundamental matters that directly

12 impact their lives, is evidence of the relative political powerlessness of gay and lesbian

13 individuals. (Id. at ¶ 28.)

14

Ms. Golinski also proffers the letter from the Attorney General to Congress regarding

15 DOMA and the Department of Justice’s determination that it would no longer provide a defense

16 of a statute which it considered to be unconstitutional. (See NSA, Ex. 2.) In the letter, the

17 Attorney General, speaking on behalf of the Executive, notes that “the adoption of the laws like

18 those at issue in Romer and Lawrence, the longstanding ban on gay men and lesbians in the

19 military, and the absence of federal protection for employment discrimination on the basis of

20 sexual orientation show the group to have limited political power and ‘ability to attract the

21 [favorable] attention of the lawmakers.’” (Id. at 2, citing City of Cleburne, 473 U.S. at 445.)

22

The Court finds that the unequivocal evidence demonstrates that, although not

23 completely politically powerless, the gay and lesbian community lacks meaningful political

24 power. In 1985, in their dissent from a petition for writ of certiorari, Justices Brennan and

25 Marshall found that “homosexuals constitute a significant and insular minority of this country’s

26 population. Because of the immediate and severe opprobrium often manifested against

27 homosexuals once so identified publicly, members of this group are particularly powerless to

28 pursue their rights openly in the political arena.” Rowland v. Mad River Local School District,

23

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1 470 U.S. 1009, 1014 (1985). The Court agrees and finds that, as a class, gay men and lesbians

2 are a minority and have relatively limited political power to attract the favorable attention of

3 lawmakers. See City of Cleburne, 473 U.S. at 445. Although this factor is not an absolute

4 prerequisite for heightened scrutiny, the Court finds the evidence and the law support the

5 conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457

6 U.S. at 216 n.14; Murgia, 427 U.S. at 321.

7

Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny

8 to use when reviewing statutory classifications based on sexual orientation is heightened

9 scrutiny. See also In re Levenson, 587 F.3d at 931 (holding that “some form of heightened

10 constitutional scrutiny applies”); Witt, 527 F. 3d at 824-25 (Canby, J., concurring in part and

11 dissenting in part) (“classifications against homosexuals are suspect in the equal protection

12 sense” as gay and lesbian individuals have “experienced a history of purposeful unequal

13 treatment [and] been subjected to unique disabilities on the basis of stereotyped characteristics

14 not truly indicative of their abilities” and “they also exhibit obvious, immutable, or

15 distinguishing characteristics that define them as a discrete group; and they are a minority.”). In

16 short, this Court holds that gay men and lesbians are a group deserving of heightened protection

17 against the prejudices and power of an often-antagonistic majority. See id. at 825.

18

5. Application of Heightened Scrutiny to Justifications Proffered for DOMA.

19

Under heightened scrutiny, the proponents of the statute must establish, at a minimum,

20 that the classification is “substantially related to an important governmental objective.” Clark,

21 486 U.S. at 461. Moreover, under any form of heightened scrutiny, the statute may only be

22 defended by reference to the actual legislative bases advanced to legitimate the statute or the

23 “actual [governmental] purpose, not rationalizations for actions in fact differently grounded.”

24 United States v. Virginia, 518 U.S. 515, 535-36 (1996). The Court notes that the “historical

25 background of the decision” to enact legislation and the “specific sequence of events leading up

26 to the challenged decision” may shed light on the decisionmakers’ purposes. See Village of

27 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977).

28 Here, the legislative history is replete with expressed animus toward gay men and lesbians.

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1

The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality,

2 and a moral conviction that heterosexuality better comports with traditional (especially Judeo-

3 Christian) morality.” H.R. Rep. No. 104-664 at 16 (footnote omitted). In his expression of

4 these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that

5 “[m]ost people do not approve of homosexual conduct ... and they express their disapprobation

6 through the law.” 142 Cong. Rec. H7480 (daily ed. July 12, 1996).

7

In the floor debate, members of Congress repeatedly expressed their disapprobation of

8 homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an

9 attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of

10 Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at

11 H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and

12 lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final

13 blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of

14 Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski)

15 (“Allowing for gay marriages would be the final straw, it would devaluate the love between a

16 man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the

17 hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that

18 homosexuality be considered as just another lifestyle – these are the people who seek to force

19 their agenda upon the vast majority of Americans who reject the homosexual lifestyle ...

20 Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their

21 behavior ... At the heart of this debate is the moral and spiritual survival of this Nation.” 142

22 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July

23 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the

24 homosexual extremists all across the country.”). The House Report on the pending DOMA bill

25 stated: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral

26 judgment about human sexuality. This judgment entails [a] moral disapproval of

27 homosexuality.” H.R. Rep. 104-664, at 15-16. The Report further stated that “same-sex

28

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1 marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal

2 status that most people ... feel ought to be illegitimate.” Id. at 16.

3

Despite the expressed animus against gay men and lesbians within the legislative history

4 of DOMA, Congress also specifically identified four governmental interests to be advanced by

5 the statute: (1) encouraging responsible procreation and child-rearing; (2) defending and

6 nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions

7 of morality; and (4) preserving scarce government resources. See H.R. Rep. No. 104-664, at

8 12-18.

9

a. Responsible procreation and child-rearing.

10

The first reason proffered by Congress when enacting DOMA was to encourage

11 responsible procreation and child-rearing.

12

Ms. Golinski presents evidence that it is “beyond scientific dispute” that same-sex

13 parents are equally capable at parenting as opposite-sex parents. (See Declaration of Michael

14 Lamb (“Lamb Decl.”) at ¶ 14.) The evidence presented by Professor Lamb demonstrates that

15 parents’ genders are irrelevant to children’s developmental outcomes. (See id. at ¶¶ 28, 38;

16 Reply Declaration of Michael Lamb (“Lamb Reply Decl.”) at ¶¶ 8, 19, 28.) More than thirty

17 years of scholarship resulting in over fifty peer-reviewed empirical reports have

18 overwhelmingly demonstrated that children raised by same-sex parents are as likely to be

19 emotionally healthy, and educationally and socially successful as those raised by opposite-sex

20 parents. (See Lamb Decl. at ¶¶ 29-32.) “There is ... no empirical support for the notion that the

21 presence of both male and female role models in the home promotes children’s adjustment or

22 well-being.” (Id. at ¶ 14.) “Since the enactment of DOMA, a consensus has developed among

23 the medical, psychological and social welfare communities that children raised by gay and

24 lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.”

25 Gill, 699 F. Supp. 2d at 388; see also Perry, 704 F. Supp. 2d at 1000 (“The evidence does not

26 support a finding that California has an interest in preferring opposite-sex parents over same-

27 sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant

28 to children’s developmental outcomes.”); Varnum, 763 N.W.2d at 899 n.26 (“The research

26

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1 appears to strongly support the conclusion that same-sex couples foster the same wholesome

2 environment as opposite-sex couples and suggests that the traditional notion that children need

3 a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype

4 than anything else.”).

5

BLAG argues that there are flaws in the studies proffered by Ms. Golinski’s expert,

6 Professor Lamb, comparing gay or lesbian parents to opposite-sex parents, based on

7 methodological challenges. The first alleged flaw is that there have been fewer studies of gay

8 male parents than there have been of lesbian family research. (See Lamb Reply Decl. at ¶ 7; see

9 also Lin Reply Decl., Ex. K at 76:6-17.) Whether this is the case does not impact the validity of

10 the studies performed. (See Lamb Reply Decl. at ¶ 8.) The second flaw as argued by BLAG is

11 that there are fewer studies on adolescents than on younger children. However, it remains

12 undisputed that “there are several ... studies that have looked at adolescent offspring living with

13 same-sex parents” and those studies have “uniformly reported positive outcomes.” (See id. at

14 ¶¶ 9-10; see also Lin Reply Decl., Ex. K at 82:15-83:21.) The third criticism is that Professor

15 Lamb indicates the need for further studies. This does not impact the validity of the studies

16 already performed. (See Lamb Reply Decl. at ¶ 12.) The Court finds that these criticisms of the

17 studies relied upon by Professor Lamb do not alter their validity. “[A]t the summary judgment

18 stage the judge’s function is not ... to weigh the evidence and determine the truth of the matter

19 but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.

20 The Court finds BLAG’s critique does not create an issue of fact.

21

Further, BLAG cites three sources for the proposition that same-sex parenting is inferior

22 to opposite-sex parenting. One is an article from Slate.com in which the author contends that

23 the existing science is methodologically flawed and ideologically skewed. (See Ann Hulbert,

24 The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate (Mar.

25 12, 2004), available at http://www.slate.com/id/2097048/.) This is a three-page, non-scientific

26 article by an author with no professional expertise in child development, published by a popular

27 online magazine without peer review. (See Lamb Reply Decl. at ¶ 15.) Another reference by

28 BLAG is an article criticizing the sampling size in the studies relied upon by Professor Lamb.

27

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1 As Professor Lamb explains, such sampling is typical of psychological research and a number

2 of the studies he relied upon do use representative sampling. (See id. at ¶ 16.) The last source

3 is an unpublished piece by Professor Loren Marks in which he criticizes a brief issued by the

4 American Psychological Association in 2005 concluding that social science research indicates

5 that gay parents provide a home environment equally likely to support children’s psychological

6 and social growth. (See BLAG Opp. Br., Ex. 2.) The critique is neither a study nor published

7 in a peer-reviewed journal and its questionable analysis is based on outdated and selectively-

8 chosen data. (See Lamb Reply Decl. at ¶¶ 20-27.) The piece also ignores many of the studies

9 relied upon by Professor Lamb regarding the conclusion that parents’ sexual orientation is

10 unrelated to their children’s adjustment. (See id. at ¶¶ 21-27.) Having reviewed the evidence

11 presented, the Court concludes that all three publications merely criticize the studies relied upon

12 Professor Lamb. As stated above, the criticism merely goes to the weight of Ms. Golinski’s

13 evidence. The publications do not present any independent affirmative evidence necessary to

14 create a genuine issue of disputed fact regarding whether same-sex married couples function as

15 responsible parents.

16

Furthermore, to the extent Congress was interested merely in encouraging responsible

17 procreation and child-rearing by opposite-sex married couples, a desire to encourage opposite-

18 sex couples to procreate and raise their own children well would not provide a legitimate reason

19 for denying federal recognition of same-sex marriages. The denial of recognition and

20 withholding of marital benefits to same-sex couples does nothing to support opposite-sex

21 parenting, but rather merely serves to endanger children of same-sex parents by denying them

22 “‘the immeasurable advantages that flow from the assurance of a stable family structure,’ when

23 afforded equal recognition under federal law.” Gill, 699 F. Supp. 2d at 389 (quoting Goodridge

24 v. Department of Public Health, 440 Mass. 309, 335 (2003)). It is undisputed that same-sex

25 parents can and do have and adopt children. The denial of federal recognition of valid same-sex

26 marriages under state law does not alter parental rights under state law. Rather, the passage of

27 DOMA only serves to undermine providing a stable environment for children of same-sex

28 married couples whose children would otherwise be raised in a household bestowed with all of

28

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1 the federal benefits of marriage, including financial support and social recognition. (See Lamb

2 Decl. at ¶ 42.)

3

Furthermore, an interest in promoting procreation within marriage cannot provide a

4 legitimate reason to exclude same-sex marriages from federal recognition. The ability to

5 procreate cannot and has never been a precondition to marriage. See Lawrence, 539 U.S. at 605

6 (Scalia, J., dissenting) (stating “what justification could there possibly be for denying the

7 benefits of marriage to homosexual couples ... [s]urely not the encouragement of procreation,

8 since the sterile and the elderly are allowed to marry”). “While it is certainly true that many,

9 perhaps most, married couples have children together (assisted or unassisted), it is the exclusive

10 and permanent commitment of the marriage partners to one another, not the begetting of

11 children, that is the sine qua non of civil marriage.” Dragovich, 764 F. Supp. 2d at 1190 (citing

12 Goodridge, 440 Mass. at 332). The federal government has never considered withdrawing its

13 recognition of marriage based on an ability or inability to procreate. See id.; see also Gill, 699

14 F. Supp. 2d at 389. Even if this could be considered a legitimate interest, denying federal

15 recognition of and withholding federal benefits from legally married same-sex couples does

16 nothing to encourage or discourage opposite-sex couples from having children within marriage.

17

Accordingly, the Court finds that the first proffered reason for the passage of DOMA –

18 to encourage responsible procreation and child-rearing – does not provide a justification that is

19 substantially related to an important governmental objective.

20

b. Nurturing the institution of traditional, opposite-sex marriage.

21

The second reason proffered by Congress when passing DOMA, was its asserted interest

22 in defending and nurturing traditional, opposite-sex marriage. Tradition alone, however, cannot

23 form an adequate justification for a law. See Williams v. Illinois, 399 U.S. 235, 239 (1970);

24 Romer, 517 U.S. at 635; Lawrence, 539 U.S. at 579. The “ancient lineage” of a classification

25 does not render it legitimate. Heller, 509 U.S. at 327. Instead, the government must have an

26 interest separate and apart from the fact of tradition itself.

27

In addition, the ostensible governmental objective of fostering opposite-sex marriages

28 remains unaffected by the passage of DOMA. DOMA does nothing to encourage same-sex

29

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1 married individuals to marry members of the opposite sex because they are already married to a

2 member of the same sex. Nor does the denial of benefits to same-sex couples do anything to

3 encourage opposite-sex couples to get married. See Gill, 699 F. Supp. 2d at 389; see also In re

4 Levenson, 587 F.3d at 932 (“gays and lesbians will not be encouraged to enter into marriages

5 with members of the opposite sex by the government’s denial of benefits to same-sex spouses,

6 and the denial will not discourage same-sex couples from entering into same-sex marriages; so,

7 the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage.”); see

8 also Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the

9 number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage

10 or otherwise affect the stability of opposite-sex marriages.”).

11

Accordingly, the Court does not find that the second proffered reason for the passage of

12 DOMA – to defend and nurture the institution of traditional, opposite-sex marriage – provides a

13 justification that is substantially related to an important governmental objective.

14

c. Defending traditional notions of morality.

15

The third reason proffered by Congress when passing DOMA was its asserted interest in

16 defending traditional notions of morality. Basing legislation on moral disapproval of same-sex

17 couples does not pass any level of scrutiny. “The animus toward, and moral rejection of,

18 homosexuality and same-sex relationships are apparent in the Congressional record.” See

19 Dragovich, 764 F. Supp. 2d at 1190. “[M]oral condemnation of homosexuality [does not]

20 provide the requisite justification for the DOMA’s section three. The ‘bare desire to harm a

21 politically unpopular group’ is not a legitimate [governmental] interest.” Id. (quoting Romer,

22 517 U.S. at 634-35). The condemnation of homosexuality as immoral

23

has been shaped by religious beliefs, conceptions of right and acceptable

behavior, and respect for the traditional family. For many persons these are not

24

trivial concerns but profound and deep convictions accepted as ethical and moral

principles to which they aspire and which thus determ ine the course of t heir

25

lives. ... The issue is whether the majority may use the power of the [government]

to enforce these views on the whole society through operation of the ... law.

26

Lawrence, 539 U.S. at 571. The Court concludes it can not. The imposition of subjective moral

27

beliefs of a majority upon a minority cannot provide a justification for the legislation. The

28

obligation of the Court is “to define the liberty of all, not to mandate our own moral code.”

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1 Casey, 505 U.S. at 850. “Moral disapproval of a group cannot be a legitimate governmental

2 interest under the Equal Protection Clause because legal classifications must not be ‘drawn for

3 the purpose of disadvantaging the group burdened by the law.’” Lawrence, 539 U.S. at 582

4 (O’Connor, J., concurring) (quoting Romer, 517 U.S. at 633). “[T]he fact that the governing

5 majority ... has traditionally viewed a particular practice as immoral is not a sufficient reason

6 for upholding a law prohibiting the practice; neither history nor tradition could save a law

7 prohibiting miscegenation from constitutional attack.” Lawrence, 539 U.S. at 577-78.

8

Accordingly, the Court does not find that the third proffered reason for the passage of

9 DOMA – to defend traditional notions of morality – provides a justification that is substantially

10 related to an important governmental objective.

11

d. Preserving scarce government resources.

12

The final reason proffered by Congress for passing DOMA was the preservation of

13 scarce government resources. However, there is no evidence in the record to demonstrate that

14 the provision of federal benefits to same-sex married couples would adversely affect the

15 government fisc. In addition, the preservation of government resources cannot, as a matter of

16 law, justify barring some arbitrarily chosen group from a government program. Plyler, 457

17 U.S. at 227, 229. “[A]lhough efficacious administration of governmental programs is not

18 without some importance, ‘the Constitution recognizes higher values than speed and

19 efficiency.’” Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (citing Stanley v. Illinois, 405

20 U.S. 645, 656 (1972)). Under heightened scrutiny, convenience and economic efficiency in the

21 administration of governmental programs do not legitimize differential treatment. See id. at

22 690-91.

23

Accordingly, the Court does not find that the fourth proffered reason for the passage of

24 DOMA – to preserve scarce government resources – provides a justification that is substantially

25 related to an important governmental objective.

26

The Court concludes that, based on the justifications proffered by Congress for its

27 passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as

28 applied to Ms. Golinski.

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1 D. In the Alternative, DOMA Fails Under Rational Basis Review.

2

Although the Court finds that DOMA is subject to and fails to satisfy heightened

3 scrutiny, it notes that numerous courts have found that the statute fails even rational basis

4 review.

5

1. Standards for Rational Basis Scrutiny.

6

Where a law neither burdens a fundamental right nor targets a suspect class, a court shall

7 uphold the legislative classification so long as it bears a rational relation to some legitimate end.

8 Heller, 509 U.S. at 319-320. Under the rational basis standard of review, legislative enactments

9 are accorded a strong presumption of validity. Id. Courts “are compelled under rational-basis

10 review to accept a legislature’s generalizations even where there is an imperfect fit between

11 means and ends.” Id. (internal citations omitted). Indeed, a court applying rational basis review

12 may “go so far as to hypothesize about potential motivations of the legislature, in order to find a

13 legitimate government interest sufficient to justify the challenged provision.” Gill, 699 F. Supp.

14 2d at 387 (citing Shaw v. Oregon Public Employees’ Retirement Board, 887 F.2d 947, 948-49

15 (9th Cir. 1989) (internal quotation omitted)). “In areas of social and economic policy, a

16 statutory classification that neither proceeds along suspect lines nor infringes fundamental

17 constitutional rights must be upheld against equal protection challenge if there is any reasonably

18 conceivable state of facts that could provide a rational basis for the classification.” FCC v.

19 Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rational basis review is “a paradigm

20 of judicial restraint” and “is not a license for courts to judge the wisdom, fairness, or logic of

21 legislative choices.” Id. at 313-14. “Nor does it authorize ‘the judiciary [to] sit as a

22 superlegislature to judge the wisdom or desirability of legislative policy determinations made in

23 areas that neither affect fundamental rights nor proceed along suspect lines.’” Heller, 509 U.S.

24 at 319 (quoting Dukes, 427 U.S. at 303).

25

“‘[T]he burden of establishing the unconstitutionality of a statute rests on him who

26 assails it.’” Baker v. Carr, 369 U.S. 186, 266 (1962) (quoting Metropolitan Casualty Ins. Co. v.

27 Brownell, 294 U.S. 580, 584 (1935)). The burden is to “‘negative every conceivable basis

28 which might support it,’ whether or not the basis has a foundation in the record.” Heller, 509

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1 U.S. at 320-21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

2 “A classification does not fail rational-basis review because it ‘is not made with mathematical

3 nicety or because in practice it results in some inequality.’” Id. at 321 (quoting Dandridge v.

4 Williams, 397 U.S. 471, 485 (1970)). “The problems of government are practical ones and may

5 justify, if they do not require, rough accommodations – illogical, it may be, and unscientific.”

6 Id. (citing Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913)). “A statutory

7 discrimination will not be set aside if any state of facts reasonably may be conceived to justify

8 it.” Id. (citing McGowan v. Maryland, 366 U.S. 420, 426 (1961)).

9

However, rational review is not “toothless.” Mathews v. de Castro, 429 U.S. 181, 185

10 (1976). “A statutory classification fails rational-basis review only when it ‘rests on grounds

11 wholly irrelevant to the achievement of the State’s objective.’” Heller, 509 U.S. at 324

12 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)). Rational basis review

13 requires that the legislation not be enacted for arbitrary or improper purposes. In order for a law

14 to be legitimate, it must be “properly cognizable” by the government asserting it and “relevant

15 to interests” it “has the authority to implement.” City of Cleburne, 473 U.S. at 441. The law

16 must bear a logical relationship to the purpose it purports to advance. Romer, 517 U.S. at 632-

17 33; see also Gill, 699 F. Supp. 2d at 387. “[E]ven in the ordinary equal protection case calling

18 for the most deferential of standards, [courts] insist on knowing the relation between the

19 classification adopted and the object to be attained.” Gill, 699 F. Supp. 2d at 387 (quoting

20 Romer, 517 U.S. at 633). Lastly, the justification for the law may not rely on factual

21 assumptions that exceed the bounds of rational speculation. Lewis v. Thompson, 252 F.3d 567,

22 590 (2d Cir. 2001) (citing Heller, 509 U.S. at 320 (holding that speculation, while permissible,

23 must be “rational”)).

24

When applying rational basis review to a classification that adversely affects an

25 unpopular group, courts apply a “more searching” rational basis review. Diaz, 656 F.3d at

26 1012. With these protections, courts may thereby “ensure that classifications are not drawn for

27 the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633 (citing

28 Railroad Retirement Board v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the

33

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1 adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality

2 would be suspect.”)).

3

2. Application of Rational Basis Review to Justifications Proffered by

Congress.

4

The Court has already addressed the four interests proffered by Congress during the

5

passage of DOMA and found them not to be substantially related to an important governmental

6

objective. Similarly, under the rational basis review, the Court finds that none of Congress’

7

proffered justifications constitute a rational relation in furtherance of some legitimate

8

governmental end. See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319-320).

9

Specifically, the Court finds that Congress’ justification of promoting traditional notions

10

of morality does not satisfy rational basis scrutiny. See Lawrence, 539 U.S. at 582 (holding that

11

“[m]oral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is

12

insufficient to satisfy rational basis review under the Equal Protection Clause.”) Also, if the

13

denial of benefits is designed to defend traditional notions of morality by discouraging same-sex

14

marriage, “it does so only by punishing same-sex couples who exercise their rights under state

15

law, and thus exhibits the ‘bare desire to harm’ same-sex couples.” In re Levenson, 587 F.3d at

16

932 (emphasis in original). This is forbidden by the Constitution. See Romer, 517 U.S. at 634-

17

35. “Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather

18

than in a lawfully-recognized ‘state of connubial bliss’ that encourages a long-enduring

19

permanent relationship that, in turn, serves as the basis of a state-recognized family.” In re

20

Levenson, 587 F.3d at 932. The promotion of morality is not a cognizable governmental

21

interest furthered by the denial of federal benefits and protections.

22

Similarly, the Court does not find the justification of preserving the government fisc

23

satisfies rational basis review. See Lyng v. International Union, 485 U.S. 360, 376-77 (1988)

24

(holding that previous cases make “clear that something more than an invocation of the public

25

fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other

26

group, to suffer the burden of cost-cutting legislation.”). Ostensible savings to the government

27

28

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1 fisc that depends upon “distinguishing between homosexual and heterosexual [couples],

2 similarly situated, ... cannot survive rational basis review.” See Diaz, 656 F.3d at 1014.8

3

a. Responsible procreation and child-rearing.

4

In arguing its defense of DOMA, BLAG, for the most part, eschews the justifications

5 proffered by Congress for the legislation. However, the group does reiterate the legislative

6 justifications of encouraging responsible procreation and child-rearing and the government’s

7 interest in defending and nurturing the institution of traditional, heterosexual marriage.

8

The Court does not find the justification of encouraging responsible procreation and

9 child-rearing survives rational basis scrutiny. Even if the Court were to accept as true, which it

10 does not, that opposite-sex parenting is somehow superior to same-sex parenting, DOMA is not

11 rationally related to this alleged governmental interest.

12

Under rational basis review, although the fit between the classification and the stated

13 government interest need not be perfect, the classification must be “narrow enough in scope and

14 grounded in sufficient factual context ... to ascertain some relation between the classification

15 and the purpose it serve[s].” Romer, 517 U.S. at 632-33. Rational basis review invalidates a

16 measure whose “sheer breadth” is “discontinuous with the reasons offered for it.” Id. at 632,

17 635 (rejecting justifications where “[t]he breadth of the [measure] is so far removed from these

18 particular justifications that we find it impossible to credit them”); see also Eisenstadt v. Baird,

19 405 U.S. 438, 449 (1972) (rejecting justification of law discriminating between married and

20 unmarried individuals in access to contraceptives as “so riddled with exceptions” that the

21 interest claimed by the government “cannot reasonably be regarded as its aim”).

22

23
8 During oral argument, counsel for BLAG argued that another possible justification 24 for DOMA, somewhat related to protection of the public fisc, is “to rationally maintain
bargains that were decided upon by previous Congresses. ... There were bargains made, and 25 there were calculus [sic] made in terms of ... what benefits are we going to give, what
burdens are we going to put on people.” (Transcript at 59.) The decision of where and how 26 to protect the government fisc and to protect the bargains struck by previous Congresses does
not independently constitute a rational basis upon which to differentiate among classes of 27 citizens. See Diaz, 656 F.3d at 1014; see also Plyler, 457 U.S. at 227, 229 (holding that
preservation of government resources cannot, as a matter of law, justify barring some 28 arbitrarily chosen group from a government program). There must be some rational basis
upon which to decide not to expend public resources for a particular group.

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1

DOMA has no effect on who may become a parent under federal or state law.

2 Moreover, whether a same-sex couple is entitled to marriage benefits has no rational relation to

3 that couple’s or an opposite-sex couple’s ability to procreate. Significantly, to reiterate, the

4 ability to procreate has never been a precondition to marriage in any jurisdiction. See

5 Lawrence, 539 U.S. at 605 (Scalia, J. dissenting).9 Here, there is simply no connection between

6 the ability (or capacity) to become a parent and the designation of federal entitlements based on

7 a definition of marriage that excludes legally married couples who are capable of becoming

8 parents.

9

Denying federal benefits to same-sex married couples has no rational effect on the

10 procreation and child-rearing practices of opposite-sex married (or unmarried) couples. See

11 Perry II, 2012, WL 372713, at *21 (“There is no rational reason to think that taking away the

12 designation of ‘marriage’ from same-sex couples would advance the goal of encouraging ...

13 opposite-sex couples to procreate more responsibly.”) To the extent some people may have a

14 bias in favor of preferring biological parents over other couples, there is no such recognition of

15 this distinction under federal or state law. See id. There has been no showing that DOMA

16 alters any state or federal law governing childbearing, procreation or family structure. Given

17 the state of the law, the rationale of promoting responsible child-rearing finds no “‘footing in

18 the realities of the subject addressed by the legislation,’ and thus cannot be credited as rational.”

19 Perry II, 2012 WL 372713, at *20 (citing Heller, 509 U.S. at 321).

20

Accordingly, the Court finds that Congress’ stated justification of encouraging

21 responsible procreation and child-rearing bears no rational relationship to the classification

22 which burdens same-sex married couples.

23

24
9 During oral argument, counsel for BLAG argued that an additional reason for the 25 passage of DOMA was the fact that opposite-sex married couples could “have accidental
pregnancies” or “can make babies spontaneously.” (Transcript at 63-64.) BLAG did not, 26 however, articulate how the fact that opposite-sex couples can have accidental pregnancies
constitutes an interest supporting the passage of DOMA. Although the generation of 27 children may be biologically more spontaneous with opposite-sex couples, married or
unmarried, the Court remains perplexed how the uniformly deliberate decision of same-sex 28 married couples to become parents can be perceived as a justification against supporting their
procreation and child-rearing efforts.

36

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1

b. Nurturing the institution of traditional, opposite-sex marriage.

2

BLAG contends that the institution of opposite-sex marriage is deeply rooted in

3 American law, embedded in history and tradition, and has been defined both by Black’s Law

4 Dictionary and the Bible. (BLAG Motion to Dismiss at 23-24, citing Marsh v. Chambers, 463

5 U.S. 783, 792 (1983) (holding that traditional marriage “is deeply embedded in the history and

6 tradition of this country” and “has become part of the fabric of our society”) and Baker v.

7 Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (holding that the “institution of marriage as a union

8 of man and woman, uniquely involving the procreation and rearing of children within a family,

9 is as old as the book of Genesis.”)).

10

Again, the argument that the definition of marriage should remain the same for the

11 definition’s sake is a circular argument, not a rational justification. Simply stating what has

12 always been does not address the reasons for it. The mere fact that prior law, history, tradition,

13 the dictionary and the Bible have defined a term does not give that definition a rational basis, it

14 merely states what has been. Tradition, standing alone, does not provide a rational basis for the

15 law. Williams, 399 U.S. at 239. Simply, the “ancient lineage” of the law does not render it

16 rational. See Heller, 509 U.S. at 327.

17

BLAG argues, but does not explain how denying marriage benefits only to same-sex

18 couples will somehow make marriage between opposite-sex couples better. The proffered

19 justification may derive from strongly-held religious or fundamentally traditional beliefs, but

20 still does not provide a legally recognizable rational basis for sustaining a law that actively

21 discriminates against legally married couples. The exclusion of same-sex couples from the

22 federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages.

23 See Perry II, 2012 WL 372713, at *23 (holding that “the argument that withdrawing the

24 designation of ‘marriage’ from same-sex couples could on its own promote the strength or

25 stability of opposite-sex marital relationships lacks any such footing in reality”); see also Perry,

26 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of

27 opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or

28 otherwise affect the stability of opposite-sex marriages”); In re Levenson, 587 F.3d at 932 (this

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1 governmental interest “is largely irrelevant to the rational basis analysis here because the same-

2 sex couples who seek the benefits are already married. Also, gays and lesbians will not be

3 encouraged to enter into marriages with members of the opposite sex by the government’s

4 denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples

5 from entering into same-sex marriages; so the denial cannot be said to ‘nurture’ or ‘defend’ the

6 institution of heterosexual marriage.”).

7

Accordingly, the Court finds that Congress’ stated justification of nurturing the

8 institution of traditional, opposite-sex marriage bears no rational relationship to the

9 classification which burdens same-sex married couples.

10

3. Application of Rational Basis Review to Alternative Justifications Proffered

by BLAG.

11

BLAG does not rely exclusively on the stated legislative justifications advanced by

12

Congress during its passage of DOMA. A court may “hypothesize the motivations of the ...

13

legislature to find a legitimate objective promoted by the provision under attack.” Shaw, 887

14

F.2d at 948-49 (internal quotation marks and citation omitted). “[I]t is entirely irrelevant for

15

constitutional purposes whether the conceived reason for the challenged distinction actually

16

motivated the legislature.” Beach Communications, 508 U.S. at 313. In this regard, BLAG has

17

proffered several additional hypothetical rational bases for passing DOMA.

18

a. Congressional caution in defining a legislative term and maintaining

19

the status quo.

20

BLAG contends that Congress could have had a rational basis for the passage of DOMA

21 by preserving the status quo in the federal definition of marriage while waiting for the states to

22 “tinker with the substantive centuries-old definition of marriage.” (BLAG Opp. Br. on Motion

23 for Summary Judgment at 22.) To the extent this argument is premised upon preserving a

24 traditional definition of marriage for its own sake, the Court has already rejected this argument.

25 As the court found in Gill, “[s]taying the course is not an end in and of itself, but rather a means

26 to an end.” Gill, 699 F. Supp. 2d at 390-94. The long history of discrimination against gay men

27 and lesbians does not provide a rational basis for continuing it.

28

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1

Moreover, DOMA does not preserve the status quo. The passage of DOMA marks a

2 stark departure from tradition and a blatant disregard of the well-accepted concept of federalism

3 in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392 (finding that DOMA

4 “mark[ed] the first time the federal government has ever attempted to legislatively mandate a

5 uniform federal definition of marriage – or any other core concept of domestic relations, for that

6 matter”); see also Dragovich, 764 F. Supp. 2d at 1189 (“[S]ection three of DOMA was a

7 preemptive strike to bar federal legal recognition of same-sex marriages should certain states

8 decide to allow them, rather than a law that furthered the status quo, which gave the states

9 authority to define marriage for themselves.”).

10

The status quo prior to the passage of DOMA was federal recognition of the individual

11 states’ authority to define marriage. “The whole subject of the domestic relations ... belongs to

12 the laws of the States and not to the laws of the United States.” Elk Grove Unified School

13 District v. Newdow, 542 U.S. 1, 12 (2004) (citation omitted); see also Sosna v. Iowa, 419 U.S.

14 393, 404 (1975) (holding that “domestic relations” have “long been regarded as a virtually

15 exclusive province of the States” and “[t]he State ... has absolute right” to regulate marriage)

16 (citations omitted); Ankenbrandt v. Richards, 504 U.S. 689, 703, 716 (1992) (“declarations of

17 status, e.g., marriage, annulment, divorce, custody, and paternity,” lie at the “core” of domestic

18 relations law reserved to the states) (Blackmun, J., concurring).

19

Prior to the enactment of DOMA, the federal government had not attempted to craft its

20 own federal definition of marriage, “notwithstanding the occurrence of other similarly

21 politically-charged, protracted, and fluid debates at the state level as to who should be permitted

22 to marry.” Gill, 699 F. Supp. 2d at 392. Congress accepted without revision the patchwork of

23 different state marriage definitions regarding, for example, age requirements or marriage among

24 related persons. (See e.g., Declaration of Nancy Cott (“Cott Decl.”) at ¶¶ 26, 51-52, 56-57.)

25 The federal government has continued to defer to the states during unprecedented, hotly-

26 contested shifts in state marriage law, especially in the area of interracial marriage. (Id. at ¶¶

27

28

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1 57.) The strong tradition of federalism mandated that the federal government refrain from

2 inserting itself in the business of domestic relations.10

3

The Court finds that the passage of DOMA, rather than maintaining the status quo in the

4 arena of domestic relations, stands in stark contrast to it. Accordingly, the Court finds that

5 Congressional caution in defining a legislative term and maintaining the status quo does not

6 constitute a rational basis.

7

b. Congressional caution in area of social divisiveness.

8

BLAG also contends that Congress should remain cautious, especially in an area of so

9 much social divisiveness, by holding the purported federal definition of marriage steady while

10 waiting to see how the states tinker with new definitions. The Court finds the contention

11 similar to arguments that were advanced in support of antimiscegenation laws. Proponents

12 similarly argued that the long-standing tradition of the separation of the races provided

13 justification for prohibiting interracial marriage. The lower court in Loving found that God had

14 created the races and placed them on separate continents in order that there “would be no cause

15 for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief

16 among proponents of antimiscegenation laws that mixing the races was against God’s will,

17 flaunted a long history of tradition and, at its core, endangered the institution of marriage. See

18 id. However, in its holding in Loving, the Supreme Court found that although interracial

19 marriage was a socially divisive issue and proponents of antimiscegenation held traditional and

20
10 BLAG contends that Congress has previously enacted laws which create unique 21 federal definitions of marriage, for instance in the area federal tax regulations, Social
Security, immigration or federal benefits. However, in each instance, the federal government 22 accepted the state definitions of marriage and merely superimposed further requirements for
falling within the federal entitlement statute. See, e.g., 42 U.S.C. § 416 (requiring marriage 23 of at least one year to obtain certain Social Security benefits); 8 U.S.C. § 1186a(b)(1)
(discrediting marriages entered into merely to obtain immigration status). These federal 24 requirements do not purport to redefine or create a federal definition of marriage, but rather
impose additional criteria to further particular legislative goals. 25
In addition, BLAG cites examples in which Congress legislated in the area of 26 domestic relations, such as when it banned polygamy in the Utah Territory, when it promoted
and supported marriages of former slaves after the Civil War, and legislation in the context 27 of treatment of Indians tribes. However, in each of those unique historical instances,
Congress was acting in the role of the state in the absence of a secure state government. 28 (See, e.g., Cott Decl. at ¶¶ 75-79.) DOMA marks a radical departure from the tradition of
federalism in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392.

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1 religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial

2 classification violated the equal protection guarantee. Id. at 11-12.

3

More recently, in Romer, the Supreme Court addressed a proposed amendment to the

4 Colorado state constitution that would prohibit all legislative, executive, or judicial action

5 designed to protect discrimination against homosexuals. One of the arguments in support of the

6 state amendment was that it was an attempt to withdraw “a deeply divisive social and political

7 issue from elected representatives and place its resolution squarely in the hands of the people.”

8 (See Brief for Petitioner filed April 21, 1995 in Romer v. Evans, No. 94-1039 (Supreme Court),

9 1995 WL 17008429, at *10.) Proponents contended that it was important to ensure that “the

10 deeply divisive issue of homosexuality does not serve to seriously fragment Colorado’s body

11 politic.” (See id., at *47.) Proponents argued that it required some leeway in this socially

12 divisive atmosphere to handle the “sensitive and core political choices” in matters regarding

13 discrimination against homosexuals calmly over time. (Id.) The Supreme Court, however,

14 flatly rejected this argument as providing a rational basis and found that the proposed

15 amendment to the Colorado state constitution was unconstitutional. Romer, 517 U.S. at 620.

16

Here, too, this Court finds that Congress cannot, like an ostrich, merely bury its head in

17 the sand and wait for danger to pass, especially at the risk of permitting continued constitutional

18 injury upon legally married couples. The fact that the issue is socially divisive does nothing to

19 relieve the judiciary of its obligation to examine the constitutionality of the discriminating

20 classifications in the law.

21

Accordingly, the Court finds that Congressional caution in the area of social

22 divisiveness does not constitute a rational basis.

23

c. Consistency.

24

BLAG also contends that Congress could have rationally sought to base eligibility for

25 federal benefits on a traditional definition of marriage in order “to avoid the arbitrariness and

26 inconsistency in such eligibility ... and not depend[] on the vagaries of state law.” (BLAG

27 Motion to Dismiss at 24.) However, as explained above, in all of the years preceding the

28 passage of DOMA, Congress relied on the various states’ definitions of marriage without

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1 incident. All couples married under state law were entitled to federal benefits, even if the

2 particulars of the states’ definitions were variable. The passage of DOMA actually undermined

3 administrative consistency by requiring that the federal government, for the first time, discern

4 which state definitions of marriage are entitled to federal recognition and which are not.

5

Accordingly, the Court finds that consistency does not constitute a rational basis.

6

d. Any other possible basis.

7

The Court finds that neither Congress’ claimed legislative justifications nor any of the

8 proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged

9 governmental interests. Further, after concluding that neither the law nor the record can sustain

10 any of the interests suggested, the Court, having tried on its own, cannot conceive of any

11 additional interests that DOMA might further. See Diaz, 656 F.3d at 1015.

12

CONCLUSION

13

For the foregoing reasons, the Court HEREBY DENIES BLAG’s motion to dismiss;

14 DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary

15 judgment; and GRANTS the OPM’s motion to dismiss.

16

The Court has found that DOMA unconstitutionally discriminates against same-sex

17 married couples. Even though animus is clearly present in its legislative history, the Court,

18 having examined that history, the arguments made in its support, and the effects of the law, is

19 persuaded that something short of animus may have motivated DOMA’s passage:

20

Prejudice, we are beginning to unders tand, rises not from malice or hostile

animus alone. It may result as well from insensitivity caused by simple want of

21

careful, rational reflection or fromsome instinctive mechanism to guard against

people who appear to be different in some respects from ourselves.

22

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,

23

J., concurring).

24

This case was presented by an employee of the judicial branch against the executive

25

branch, which ultimately determined it could not legitimately support the law. The law was

26

then defended by the legislative branch. The judicial branch is tasked with determining whether

27

this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is

28

emphatically the province and duty of the judicial department to say what the law is” and,

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1 where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137,

2 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation

3 hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the

4 judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the

5 Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the

6 S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,

7 Nominee).

8

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right

9 to equal protection of the law under the Fifth Amendment to the United States Constitution by,

10 without substantial justification or rational basis, refusing to recognize her lawful marriage to

11 prevent provision of health insurance coverage to her spouse.

12

Accordingly, the Court issues a permanent injunction enjoining defendants, and those

13 acting at their direction or on their behalf, from interfering with the enrollment of Ms.

14 Golinski’s wife in her family health benefits plan. The Clerk is directed to enter judgment in

15 favor of Ms. Golinski and against defendants the Office of Personnel Management and its

16 director John Berry as set out herein pursuant to Federal Rule of Civil Procedure 58.

17

18

IT IS SO ORDERED.

19 Dated: February 22, 2012 20

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

43

 
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1 JAMES R. McGUIRE (CA SBN 189275)
JMcGuire@mofo.com 2 GREGORY P. DRESSER (CA SBN 136532)
GDresser@mofo.com 3 RITA F. LIN (CA SBN 236220)
RLin@mofo.com 4 AARON D. JONES (CA SBN 248246)
AJones@mofo.com 5 MORRISON & FOERSTER LLP
425 Market Street 6 San Francisco, California 94105-2482
Telephone: 415.268.7000 7 Facsimile: 415.268.7522

8 JON W. DAVIDSON (CA SBN 89301) JDavidson@lambdalegal.org
9 TARA L. BORELLI (CA SBN 216961) TBorelli@lambdalegal.org
10 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300
11 Los Angeles, California 90010-1729 Telephone: 213.382.7600
12 Facsimile: 213.351.6050

13 Attorneys for Plaintiff KAREN GOLINSKI
14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

18 KAREN GOLINSKI,

Case No. 3:10-cv-0257-JSW

19

20

v.

Plaintiff,

SECOND AMENDED COMPLAINT

21 UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, and JOHN BERRY, Director
22 of the United States Office of Personnel Management, in his official capacity,
23
Defendants. 24

25

26

27

28
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1

2

INTRODUCTION

3

1. In this action, plaintiff Karen Golinski challenges federal discrimination against

4 her as a lesbian married to someone of the same sex, and the harm that such discrimination has

5 caused her and her family.

6

2. Plaintiff is a citizen of the State of California and of the United States of America.

7 She is legally married to a person of the same sex in accordance with California law.

8

3. The federal government does not license marriages, but many of its programs take

9 marital status into account to determine eligibility for federal benefits, protections and

10 responsibilities. Statutes, precedent, and principles of federalism establish that state law is the

11 touchstone for determining a couple’s marital status when establishing eligibility for federal

12 programs.

13

4. Plaintiff is an employee of the federal judiciary. She receives health insurance

14 through her employer and has elected a family health insurance plan to provide coverage to

15 herself and to her son. She requested that her employer enroll her spouse, Amy Cunninghis, in

16 her family plan, a benefit available to married employees of the federal judiciary. Defendants, on

17 behalf of the federal government, however, refused and blocked the enrollment, based on

18 plaintiff’s sexual orientation, and based on her sex in relation to the sex of her spouse.

19

5. As the basis for their denial of the benefits and protections of federal law,

20 defendants invoked Section 3 of the so-called “Defense of Marriage Act,” P.L. 104-199, codified

21 in part as 1 U.S.C. § 7 (“DOMA”), and stated that the federal government will only recognize

22 marriages between a man and a woman.

23

6. Defendants’ application of DOMA has barred plaintiff and her spouse from

24 receiving benefits that are routinely granted to other similarly situated married couples, based on

25 plaintiff’s sexual orientation and her sex in relation to the sex of her spouse.

26

7. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C.

27 §§ 2201-2202 and Fed. R. Civ. P. 57 and for review of agency action pursuant to 5 U.S.C. §§

28 701-706. It seeks a determination that DOMA, 1 U.S.C. § 7, as applied to plaintiff, violates the

United States Constitution by refusing to recognize lawful marriages for purposes of the laws

SECOND AMENDED COMPLAINT

1

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1 2 governing benefits for federal employees. The result of these violations of the Constitution is that 3 plaintiff has been denied, and will continue to be denied, legal protections and benefits under

4 federal law that would be available to her if she were a heterosexual with a different-sex spouse.

5

PARTIES

6

8. Plaintiff Karen Golinski is a California citizen residing in San Francisco,

7 California.

8

9. Defendant United States Office of Personnel Management is an independent

9 establishment in the executive branch of the United States government. 5 U.S.C. § 1101.

10

10. Defendant John Berry is the Director of the United States Office of Personnel

11 Management.

12

JURISDICTION, VENUE, AND SOVEREIGN IMMUNITY

13

11. This action arises under the Constitution of the United States and the laws of the

14 United States. This Court has jurisdiction over this action pursuant to 5 U.S.C. § 8912; 28 U.S.C.

15 § 1331; and 28 U.S.C. § 1346(a)(2).

16

12. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).

17

13. The United States has waived sovereign immunity under 5 U.S.C. § 702.

18

14. Defendant John Berry’s actions in this matter were beyond the scope of his

19 statutory and his constitutional authority. Accordingly, sovereign immunity does not apply to this

20 action.

21

FACTS

22

15. Karen Golinski and Amy Cunninghis have been partners for 21 years. They met in

23 the fall of 1989 and have been in a committed relationship ever since. They became registered

24 domestic partners with the City and County of San Francisco in 1995 and with the State of

25 California in 2003. They have an eight-year-old son whom they have raised from birth together.

26

16. On May 15, 2008, the California Supreme Court ruled that the State’s laws that

27 limited the institution of marriage to different-sex couples, while prohibiting same-sex couples

28 from marrying, violated the California Constitution. In re Marriage Cases, 43 Cal. 4th 757, 855-

56 (2008). On or about June 17, 2008, San Francisco and other California counties began to issue

SECOND AMENDED COMPLAINT

2

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1

2 marriage licenses to same-sex couples. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 928

3 (N.D. Cal. 2010).

4

17. Ms. Golinski married Amy Cunninghis on August 21, 2008, at San Francisco City

5 Hall, pursuant to a duly issued California marriage license. Ms. Golinski and Ms. Cunninghis

6 remain lawfully married under the laws of the State of California.

7

The Federal Employees Health Benefits Program

8

18. Ms. Golinski has been employed by the United States Court of Appeals for the

9 Ninth Circuit, now located at 95 Seventh Street in San Francisco, California 94103, for

10 approximately 19 years. She is currently employed in the Motions Unit of the Office of Staff

11 Attorneys. The United States Court of Appeals for the Ninth Circuit prohibits employment

12 discrimination based on, among other things, sex or sexual orientation.

13

19. As an employee of the federal judiciary, Ms. Golinski obtains health insurance

14 under the Federal Employees Health Benefits Program (“FEHB”). See generally 5 U.S.C. § 8901

15 et seq. Because she and her spouse have an eight-year-old son, Ms. Golinski has, since his birth,

16 paid for “self and family” health insurance coverage under the Blue Cross and Blue Shield

17 Service Benefit Plan (“Blue Cross/Blue Shield”).

18

20. The FEHB Handbook described Family Members Eligibility for Coverage as

19 follows:

20

Employing Office Responsibilities

21

Your employing office is responsible for making decisions about

whether a family member is eligible for coverage.

22

* * * 23

General Eligibility for Coverage 24

Family members eligible for coverage under your Self and Family

25

enrollment are your spouse (including a valid common law

marriage) and children under age 22, including legally adopted

26

children and recognized natural (born out of wedlock) children who

meet certain dependency requirements. 27

* * * 28

SECOND AMENDED COMPLAINT

3

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1

2

Eligible Family Members Automatically Covered

3

When you enroll for Self and Family, you automatically include all

eligible members of your family. If you don’t list an eligible family

4

member on your Health Benefits Election Form (SF 2809) or other

enrollment request, that person is still entitled to coverage. If you

5

list a person who is not an eligible family member, your employing

office will explain why the person is not eligible for coverage and

6

will remove the name from the list. The listing of an ineligible

person on the SF 2809 doesn’t entitle him/her to benefits.

7 FEHB Handbook (Oct. 28, 2008).

8

21. According to 5 U.S.C. § 8901(5), “member of family” is defined, in relevant part,

9 to “mean[] the spouse of an employee or annuitant [and] an unmarried dependent child under 22

10 years of age.”

11 22. On September 2, 2008, Ms. Golinski sought to enroll her spouse in the family

12 health plan for which she was paying by submitting the appropriate forms to her employer’s

13 human resources department. The human resources department forwarded the request to the

14 Administrative Office of the United States Courts (“AO”).

15 23. On September 11, 2008, the AO advised the Ninth Circuit’s human resources

16 department that Ms. Cunninghis was ineligible for coverage because Ms. Golinski and her spouse

17 are both women.

18 24. On October 21, 2008, the AO once again advised the Ninth Circuit’s human

19 resources department that Ms. Golinski’s election form would not be processed, and that Ms.

20 Cunninghis was ineligible for coverage, for the same reason. On both occasions, the AO

21 indicated that it based its actions on the “Defense of Marriage Act.”

22 25. If Ms. Golinski were a man, or conversely if Ms. Cunninghis were a man,

23 Ms. Golinski would be able to add her spouse to her existing family plan at no additional cost to

24 her. Similarly situated heterosexual employees in Ms. Golinski’s position routinely receive this

25 significant benefit as a matter of course. For example, one employee who had recently joined the
26 Motions Unit under the same title and who, like Ms. Golinski, has a spouse and a young child,
27 attested that,
28

as soon as I began to work for the United States Court of Appeals

for the Ninth Circuit, I applied to have both my spouse and my

SECOND AMENDED COMPLAINT

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1

2

daughter covered under a family coverage health plan obtained

through my employer. I completed the “Health Benefits Election

3

Form,” which stated that I wanted my wife and daughter to be

covered under the plan . . . . Both my wife and daughter received

4

coverage shortly thereafter.

5 Ms. Golinski performs work equal to that of her co-workers, and in fact has more experience in

6 the position than most, yet she does not receive the benefits that her married heterosexual co-

7 workers receive for their respective spouses.

8

26. The government’s refusal to provide Ms. Golinski with benefits that similarly

9 situated different-sex married couples receive burdens and stigmatizes her relationship.

10

27. Ms. Golinski has been forced to obtain separate, individual health insurance —

11 that is, coverage outside of a group health plan — for her spouse that is inferior to the coverage

12 she would receive under her plan. In addition to payment of monthly premiums, Ms. Cunninghis

13 must also pay higher out-of-pocket costs for her health insurance than she would have to pay if

14 she were covered under plaintiff’s employee group plan. Ms. Cunninghis also receives less

15 comprehensive coverage with her individual plan. Ms. Cunninghis has been unable to obtain

16 individual coverage of similar quality to that offered through Ms. Golinski’s employee health

17 plan because no equivalent individual coverage is available for purchase on the market. As a

18 result, Ms. Golinski and her spouse have suffered, and continue to suffer, financial hardship and

19 severe anxiety about the possibility that Ms. Cunninghis will be unable to obtain the care

20 necessary to address serious health issues should they develop.

21

The “Defense of Marriage Act”

22

28. Congress enacted the so-called “Defense of Marriage Act,” P.L. 104-199, in 1996,

23 and it was approved on September 21, 1996.

24

29. Section 3 of DOMA, 1 U.S.C. § 7, provides, in part, as follows:

25

Sec. 3 DEFINITION OF MARRIAGE.

26

(a) IN GENERAL – Chapter 1 of title 1, United States Code is

amended by adding at the end the following:

27

§7. Definition of ‘marriage’ and ‘spouse’

28

“In determining the meaning of any Act of Congress, or of

any ruling, regulation, or interpretation of the various

SECOND AMENDED COMPLAINT

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1

2

administrative bureaus and agencies of the United States, the word

‘marriage’ means only a legal union between one man and one

3

woman as husband and wife, and the word ‘spouse’ refers only to a

person of the opposite sex who is a husband or a wife.”

4

30. This law responded to “a very particular development in the State of Hawaii.”

5 H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905, at 2906. As the controlling House

6 Judiciary Committee Report explained, “the state courts in Hawaii appear on the verge of

7 requiring that State to issue marriage licenses to same-sex couples,” and that development

8 “threatens to have very real consequences . . . on federal law . . . .” Id. More specifically,

9

[I]f Hawaii does ultimately permit homosexuals to ‘marry,’ that

10

development could have profound practical implications for federal

law. For to the extent that federal law has simply accepted state

11

law determinations of who is married, a redefinition of marriage in

Hawaii to include homosexual couples could make such couples

12

eligible for a whole range of federal rights and benefits.

13 Id. at 2914.

14

31. In passing Section 3 of DOMA, Congress took the unprecedented step of

15 preemptively nullifying a class of marriages that it expected states would begin to license at some

16 point in the future, that is, marriages of same-sex couples. It withdrew from these marriages, but

17 not from others, all federal responsibilities, protections, and benefits, financial and otherwise.

18

32. With regard to a lesbian or gay individual married to someone of the same sex,

19 Section 3 of DOMA has overridden the long-standing deference of federal law to state law in

20 determining the marital status of an individual seeking the benefits or responsibilities of any

21 federal law triggered by a person’s marital status, and it categorically denies both rights and

22 responsibilities.

23

33. If not for the application of DOMA, Ms. Golinski, as a person legally married

24 under California law, would receive the same benefits, responsibilities, and protections under

25 federal law as other married persons. Yet DOMA operates to single out one class of marriages

26 legally recognized by the State of California, those of same-sex couples, and to deny their

27 existence for all ends and purposes under federal law.

28

SECOND AMENDED COMPLAINT

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1

2

34. In a 1997 Report, the General Accounting Office (“GAO”)1 estimated that at least

3 1,049 federal laws were affected by DOMA, because those laws depended on or in some way

4 related to marital status. U.S. Gov. Accountability Office, GAO/OGC-97-16 Defense of

5 Marriage Act (1997), available at http://www.gao.gov/archive/1997/og97016.pdf. A follow-up

6 study in 2004 found that 1,138 federal laws tied benefits, protections, or responsibilities to marital

7 status. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004),

8 available at http://www.gao.gov/new.items/d04353r.pdf.

9

35. Ms. Golinski has been denied legal benefits and protections typically available to

10 spouses under federal law. Despite the willingness of Ms. Golinski and her spouse to assume the

11 legally imposed responsibilities of marriage at the federal level, they are prevented from doing so

12 by DOMA.

13

36. DOMA grants preferred legal status and unique privileges to individuals married

14 to someone of a different sex.

15

37. The official House Report on DOMA, H.R. Rep. No. 104-664, advanced four

16 rationales for why the federal government drew a line between its treatment of individuals

17 married to a same-sex spouse and individuals married to a different-sex spouse:

18

(1) H.R. 3396 [the bill number] ADVANCES THE

GOVERNMENT’S INTEREST IN DEFENDING AND

19

NURTURING THE INSTITUTION OF TRADITIONAL

HETEROSEXUAL MARRIAGE. 20

(2) H.R. 3396 ADVANCES THE GOVERNMENT’S

21

INTEREST IN DEFENDING TRADITIONAL NOTIONS OF

MORALITY. 22

23

(3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND

24

DEMOCRATIC SELF GOVERNANCE.

25

(4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT

26

RESOURCES.

27 1 The General Accounting Office changed its name to the Government Accountability
28 Office in 2004. (See http://www.gao.gov/about/namechange.html.)

SECOND AMENDED COMPLAINT

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1

2

38. None of these interests is adequate to justify discrimination against married

3 persons in same-sex relationships, and no other federal interest justifies such discrimination.

4

39. The first claimed federal “interest” in “defending” “traditional heterosexual

5 marriage” simply restates the government’s intent to discriminate against same-sex couples and

6 provides no independent justification for the government’s discriminatory action. The federal

7 government has long accepted state determinations of marital status, even in the face of changes

8 in marriage licensing by the states. The only state-licensed marriages it categorically refuses to

9 honor are those of same-sex couples. The federal government’s refusal to recognize plaintiff’s

10 marriage does not nurture, improve, stabilize, or enhance the marriages of other married couples.

11 Nor would the federal government’s recognition of plaintiff’s marriage degrade, destabilize, or

12 have any other deleterious effect on the marriages of other married couples.

13

40. The second claimed federal interest in “morality” is another reframing of

14 Congress’s disapproval of lesbians and gay men. Lesbians and gay men have suffered a long

15 history of public and private discrimination. Discrimination for its own sake is not a legitimate

16 purpose upon which disadvantageous classifications may be imposed. Moreover, sexual

17 orientation bears no relation whatsoever to an individual’s ability to participate in or contribute to

18 society.

19

41. The third claimed interest in “protecting state sovereignty” is actually subverted by

20 DOMA, not advanced by it. In enacting DOMA, Congress violated inherent constitutional

21 principles of federalism and failed to honor our nation’s system of dual sovereignty, because it is

22 the states, and not the federal government, that regulate marriage and determine family status.

23 Congress did not “protect” state sovereignty in enacting DOMA, since it dishonored the

24 sovereignty of the states that license or recognize marriages of same-sex couples.

25

42. As to the fourth claimed interest in preserving government resources, the available

26 data from the Congressional Budget Office establishes that recognizing the marriages of

27 individuals married to a person of the same sex would result in an annual net increase in federal

28 revenue. Congressional Budget Office, U.S. Congress, The Potential Budgetary Impact of

Recognizing Same-Sex Marriages, June 21, 2004. Furthermore, family health coverage for same-

SECOND AMENDED COMPLAINT

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1 2 sex couples would provide countervailing advantages and cost savings for the government by 3 reducing strain on social services and by strengthening the competitiveness of public employers. 4 There was and is no basis for the claim that DOMA “preserv[es] scarce government resources.”

5

43. While the public fisc is always a matter of concern, the government cannot achieve

6 this interest by singling out a similarly situated vulnerable minority group, such as lesbians and

7 gay men, for discrimination based on their sexual orientation and sex in relation to the sex of their

8 spouse. There was and is no valid justification to deny lesbian and gay individuals who have met

9 their obligations as taxpaying citizens and who are married to someone of the same sex the

10 protections available to persons who are married to someone of a different sex.

11

44. DOMA does not maintain the status quo or promote consistency. It substantially

12 altered the status quo with respect to the federal government’s treatment of marriage and

13 provision of marriage-related benefits and created new inconsistencies in these arenas.

14

45. Defendants’ categorical denial of equal compensation to plaintiff based on her

15 sexual orientation and sex in relation to the sex of her spouse subjects defendants’ conduct to

16 strict or at least heightened scrutiny. Defendants’ conduct cannot withstand such scrutiny

17 because defendants’ conduct does not serve any legitimate governmental interests, let alone any

18 important or compelling governmental interests, nor does it serve any such interests in an

19 adequately tailored manner.

20

46. At root, DOMA is motivated by disapproval of lesbians and gay men and their

21 relationships, which is an illegitimate federal interest.

22

Ninth Circuit EDR Review

23

47. In December 1997, the United States Court of Appeals for the Ninth Circuit

24 adopted an Employment Dispute Resolution Plan (“EDR Plan”). The EDR Plan was adopted at

25 the direction, and with the approval, of the Judicial Conference of the United States. The AO is

26 subject to the “supervision and direction of the Judicial Conference of the United States.”

27 28 U.S.C. § 604. As revised through December 2000, that EDR Plan prohibits employment

28 discrimination based on, among other things, sex or sexual orientation.

SECOND AMENDED COMPLAINT

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1

2

48. Because the AO had informed Ms. Golinski that it would not enroll her spouse in

3 her family plan, on October 2, 2008, Ms. Golinski timely and properly filed a complaint under the

4 EDR Plan seeking redress of the discrimination she was suffering in the terms of her

5 employment. She alleged that: (1) the denial of coverage violates the anti-discrimination

6 provisions of the Ninth Circuit’s EDR Plan; (2) the FEHB and DOMA do not compel such

7 discriminatory treatment, and under those statutes, she is entitled to coverage for her spouse; and

8 (3) such treatment violates her rights under the Fifth Amendment of the United States

9 Constitution.

10

49. As required by the EDR Plan, Ms. Golinski’s complaint was heard by the Chief

11 Judge of the Ninth Circuit. Following a hearing in November 2008, the Chief Judge issued a

12 series of orders dated November 24, 2008, January 13, 2009, November 19, 2009, December 22,

13 2009, and March 5, 2010. The Chief Judge’s orders are attached hereto as Exhibits A-E,

14 respectively, and are incorporated herein by reference.

15

50. By his orders dated November 24, 2008, and January 13, 2009, the Chief Judge

16 ordered the Director of the AO to process Ms. Golinski’s health benefit election forms without

17 regard to Ms. Golinski’s sexual orientation or the sex of her spouse. The January 13 order

18 explained that the AO had incorrectly concluded that DOMA prohibited the extension of family

19 health insurance coverage to a same-sex spouse of a judicial employee. (Exhibit B [January 13,

20 2009 Order] at 2-7.)

21

51. The AO complied with the Chief Judge’s orders of November 24, 2008, and

22 January 13, 2009, and submitted the appropriate enrollment papers to Ms. Golinski’s insurance

23 carrier, Blue Cross/Blue Shield, to effectuate enrollment.

24

Defendants’ Unlawful Interference with the Provision of Benefits

25

52. Notwithstanding the final decision of Ms. Golinski’s employing office and agency

26 that, under the pertinent federal laws, Ms. Golinski is entitled to enroll her spouse in her family

27 plan, OPM intervened to prevent such enrollment. On February 20, 2009, OPM sent a letter to

28 AO stating, in part:

SECOND AMENDED COMPLAINT

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1

2

As you are aware, Title 5, chapter 89 of the United States Code

governs the Federal Employees Health Benefits (FEHB) Program.

3

It provides for coverage of the employee and members of the

employee’s family. Members of the family are defined in the law,

4

and include only certain unmarried dependent children and the

spouse of the eligible employee or annuitant. P.L. 104-199, the

5

Defense of Marriage Act (DOMA) requires an agency when

interpreting an Act of Congress, to define the word “spouse” as a

6

person of the opposite sex who is a husband or a wife. OPM issued

guidance to agencies regarding the definitions of “marriage” and

7

“spouse” in Benefits Administration Letter 96-111, dated

November 15, 1996. This Letter is available on the OPM web site

8

at http://www.opm.gov/retire/pubs/bals and remains in effect.

Officials of agencies participating in the Federal benefits programs

9

administered by OPM must follow the guidance provided in the

Letters.

10 (Exhibit C [November 19, 2009 Order], at Ex. A thereto.)

11

53. OPM’s February 20 letter further stated,

12

We have advised Kaiser Foundation Health and the Blue Cross and

13

Blue Shield Service Benefit Plans that they may not accept the

enrollment forms submitted by your agency to provide coverage

14

that is not allowed under Federal law.

15 (Id.)

16

54. As a result of OPM’s interference, the Chief Judge issued a further order on

17 November 19, 2009, “to protect Ms. Golinski and the integrity of the Judiciary’s EDR plans.”

18 (Exhibit C at 3.) The Chief Judge explained that, as to judicial employees, the separation of

19 powers doctrine requires that an EDR tribunal’s reasonable interpretations of the law take

20 precedence over that of any office or agency of the executive. (Exhibit C at 11-12.) The Chief

21 Judge expressly ordered OPM to remedy its prior, erroneous guidance to Blue Cross/Blue Shield

22 blocking Ms. Cunninghis’s enrollment and to cease all prospective interference. (Exhibit C at 15-

23 16.) The Chief Judge ordered the Clerk of the Court to serve the order on OPM (which it did),

24 and he invited OPM to appeal. (Id. at 16.)

25

55. In that November 19, 2009 order, the Chief Judge also awarded Ms. Golinski

26 ongoing back pay to reimburse her for the cost of purchasing separate individual insurance to

27 cover Ms. Cunninghis. As the Chief Judge found in that order, and in the subsequent March 5,

28 2010 order calculating the precise amount of the back pay award, the back pay received by

Ms. Golinski is inadequate to remedy the discrimination that she suffers. Because comparable

SECOND AMENDED COMPLAINT

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1 2 coverage is not available for purchase by individuals on the private market, Ms. Cunninghis’s 3 coverage remains inferior, in terms of both the scope of its coverage and its higher out-of-pocket 4 costs. Moreover, as the Chief Judge observed, the award of back pay does nothing to alter Ms. 5 Golinski’s consignment to a “de facto separate, and therefore inherently unequal, benefits system

6 based on her sex and sexual orientation.”

7

56. OPM did not appeal the Chief Judge’s November 19, 2009 order, and it did not

8 comply with the order. Instead, it issued a press release stating, in part:

9

Karen Golinski, an employee of the Federal Courts, filed a

grievance against her employer claiming that the denial of

10

enrollment of her same-sex spouse in the Federal Employees Health

Benefits Plan (FEHBP) violated the Ninth Circuit’s Equal

11

Employment Opportunity policy. Ninth Circuit Chief Judge Alex

Kozinski, sitting in his administrative capacity, and not as a federal

12

judge in a court case, said that employees of the court were entitled

to FEHBP health benefits for their same-sex spouses. OPM must

13

administer the FEHBP in a lawful manner, and the Department of

Justice (DOJ) has advised OPM that providing those benefits would

14

violate the so-called “Defense of Marriage Act.”

15

* * *

16

In other words, the current federal law means that same-sex spouses

are ineligible to be enrolled in federal benefit programs that define

17

eligibility based on their status as spouses. As the President has

explained, the Administration believes that this law is

18

discriminatory and needs to be repealed by Congress — that is why

President Obama has stated that he opposes DOMA and supports its

19

legislative repeal.

20

* * *

21

The decision in this matter was not reached lightly — after we

learned of this development, we examined our options and

22

consulted with the DOJ. DOJ advised us that the order issued by

23

Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in

24

his administrative capacity, and not as a judge in a court case.

(Statement from Elaine Kaplan, OPM General Counsel, available at http://www. 25

washingtonpost.com/wp-srv/nation/documents/statement_from_elaine_kaplan_opm.pdf, attached 26

hereto as Exhibit F, and incorporated herein by reference.) 27

57. On December 22, 2009, the Chief Judge issued a final order holding that the time 28

to appeal the prior orders had expired, finding that those prior orders are “therefore final and

SECOND AMENDED COMPLAINT

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1

2 preclusive on all issues decided therein as to others who could have, but did not appeal, such as

3 the [OPM],” and authorizing Ms. Golinski to take further action to enforce the prior orders.

4 (Exhibit D [December 22, 2009 Order] at 1.)

5

58. Defendants continue to block the provision of the spousal health insurance

6 coverage to which Ms. Golinski is entitled.

7

Procedural History

8

59. On January 20, 2010, Ms. Golinski filed the instant lawsuit, and she filed a First

9 Amended Complaint (“FAC”) on March 8, 2010. Therein she sought a writ of mandamus to

10 direct OPM to comply with Chief Judge Kozinski’s orders and injunctive relief to compel OPM

11 to rescind its prior guidance blocking Ms. Cunninghis’s enrollment, and to cease further

12 interference.

13

60. On February 23, 2011, the Attorney General of the United States announced in a

14 letter to Congress that because Section 3 of DOMA is unconstitutional, and because

15 classifications based on sexual orientation warrant heightened scrutiny, the Department of Justice

16 will forego defense of the statute. The Attorney General indicated, however, that “Section 3 will 17 continue to be enforced by the Executive Branch.”2

18

61. On March 16, 2011, the Court dismissed the FAC without prejudice, stating that

19 “[t]he Court would, if it could, address the constitutionality” of “the legislative decision to enact

20 Section 3 of DOMA to unfairly restrict benefits and privileges to state-sanctioned same-sex

21 marriages . . . . However, the Court is not able to reach these constitutional issues due to the

22 unique procedural posture of this matter.” (Dkt. No. 98 at 11.) The Court granted Ms. Golinski

23 leave to amend.

24

62. Ms. Golinski files this Second Amended Complaint to challenge defendants’

25 unlawful and unconstitutional action blocking coverage of her spouse on terms equal to those of

26 employees with different-sex spouses.

27 2 Letter from the Attorney General to Congress on Litigation Involving the Defense of
28 Marriage Act, available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.

SECOND AMENDED COMPLAINT

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1

2

FIRST CLAIM FOR RELIEF

(Unlawful Agency Action and Withholding of Benefits)

3

4

63. Plaintiff incorporates and realleges each and every allegation contained in

5 paragraphs 1 through 62 of this Complaint as if set forth fully herein.

6

64. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the

7 United States Code. See 5 U.S.C. § 8901 et seq.

8

65. Pursuant to Congressional authority OPM prescribes regulations to carry out the

9 FEHB program and administers the program. See 5 U.S.C. § 8913. The pertinent regulations

10 promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations.

11

66. The FEHB program extends to employees of the federal judiciary. See generally

12 5 U.S.C. §§ 2105(a)(2), 8901(1)(A).

13

67. Under existing FEHB statutory and regulatory provisions, the spouse of a covered

14 employee who has elected “Self and Family” coverage is entitled to enroll, and is automatically

15 enrolled, in the employee’s health insurance plan under the FEHB program.

16

68. FEHB provides that “[a] contract may not be made or a plan approved which

17 excludes an individual because of race, sex, health status, or, at the time of the first opportunity to

18 enroll, because of age.” 5 U.S.C. § 8902(f).

19

69. Under existing FEHB statutory and regulatory provisions, Ms. Cunninghis would

20 be enrolled in Ms. Golinski’s “Self and Family” plan but for defendants’ application of DOMA, 1

21 U.S.C. § 7, which defendants maintain prevents provision of health insurance coverage to the

22 spouse of an employee of the federal judiciary if that spouse is of the same sex as the employee.

23

70. Defendants’ interference with the enrollment of plaintiff’s spouse and the resulting

24 withholding of benefits, based on plaintiff’s sexual orientation and her sex in relation to the sex of

25 her spouse, exceeds the authority delegated to defendants by Congress, contravenes the applicable

26 laws governing FEHB, and violates plaintiff’s rights under the laws of the United States and the

27 Constitution of the United States, including her rights to equal protection and due process secured

28 by the Fifth Amendment.

SECOND AMENDED COMPLAINT

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1

2

71. The disparity of treatment with regard to federal employment-related benefits

3 available to Ms. Golinski and other similarly situated individuals is not mandated by DOMA,

4 1 U.S.C. § 7, but rather reflects an improper and overly narrow construction of the permissible

5 bounds of the federal government’s authority to extend coverage to family members. Federal

6 statutory provisions as to employment-related benefits that turn on “member of family,” “family,”

7 or “family members,” including but not limited to 5 U.S.C. § 8901, set general guidelines and

8 minimum requirements of coverage availability but do not establish absolute ceilings or outer

9 boundaries of coverage.

10

72. To the extent that the disparity of treatment with regard to federal employment-

11 related benefits available to Ms. Golinski is, in fact, mandated by DOMA, 1 U.S.C. § 7, that

12 disparity of treatment creates a classification that treats similarly situated individuals differently

13 without adequate justification and improperly burdens and penalizes her relationship, based on

14 her sexual orientation and her sex in relation to the sex of her spouse, in violation of the rights of

15 equal protection and due process secured by the Fifth Amendment of the Constitution of the

16 United States.

17

73. An actual controversy exists between and among the parties, and plaintiff has no

18 other adequate remedy.

19

SECOND CLAIM FOR RELIEF

(Declaratory and Injunctive Relief, 28 U.S.C. §§ 2201-2202) 20

21

74. Plaintiff incorporates and realleges each and every allegation contained in

22 paragraphs 1 through 73 of this Complaint as if set forth fully herein.

23

75. This case presents an actual case or controversy because there is an existing,

24 ongoing, real, and substantial controversy between plaintiff and defendants, who have adverse

25 interests. This controversy is sufficiently immediate, substantial, and real to warrant the issuance

26 of a declaratory judgment because plaintiff has been denied and will continue to be denied family

27 coverage by defendants’ unlawful actions and enforcement of the unconstitutional law.

28

76. This case is ripe for consideration because it presents issues suitable for an

immediate and definitive determination of the legal rights of the parties in this adversarial

SECOND AMENDED COMPLAINT

15

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1 2 proceeding, and plaintiff has been and will continue to be subjected to irreparable injury and 3 significant hardship by defendants’ interference with the provision of family coverage for

4 plaintiff’s spouse.

5

77. Plaintiff’s claims are not speculative or hypothetical, but rather involve the validity

6 of a statute that is being implemented and enforced by defendants against plaintiff and all other

7 lesbian and gay federal employees who are legally married to persons of the same sex.

8 Defendants’ continued enforcement of the unconstitutional law will deprive plaintiff of family

9 health coverage for her spouse, and will deprive plaintiff of the constitutional rights pleaded

10 herein.

11

78. The injury plaintiff has suffered and will continue to suffer if her rights are not

12 adjudicated herein is real, immediate, actual, concrete, and particularized and is not just

13 threatened but certain and ongoing. No further events need take place to determine that

14 defendants’ enforcement of Section 3 of DOMA has caused and will proximately cause plaintiff

15 irreparable injuries.

16

79. Plaintiff seeks injunctive relief to protect her constitutional rights and to eliminate

17 the resultant financial and emotional harms described above. A decision enjoining defendants

18 would redress and prevent further irreparable injuries from occurring to plaintiff.

19

80. The irreparable injuries plaintiff has suffered and will suffer absent injunctive

20 relief have no adequate remedy at law or in equity. An injunction is the only way of adequately

21 protecting plaintiff from the harms of the deprivation of her constitutional rights, the absence of

22 family coverage to address her spouse’s ongoing health needs, and the financial burden of

23 obtaining separate health coverage for her spouse. No legal or equitable remedy short of an

24 injunction can alleviate the stigma of the government’s failure to recognize plaintiff’s marital

25 status with respect to family health insurance coverage.

26

81. The burden on defendants of maintaining family coverage for plaintiff will be

27 minor or non-existent. Under its current contract with the insurer, the federal government would

28 incur no additional cost by enrolling Ms. Cunninghis because it pays no additional money when

an employee adds additional family members to a family health plan. Further, there are only a

SECOND AMENDED COMPLAINT

16

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1 2 small number of lesbian and gay federal employees who are legally married and who have sought

3 to obtain family coverage for a spouse. In contrast, the hardship to plaintiff of being deprived of

4 insurance coverage for her spouse is significant, immediate, and ongoing. The balance of

5 hardships thus tips strongly in favor of plaintiff.

6

PRAYER

7

WHEREFORE, plaintiff Karen Golinski prays for relief as follows:

8

a. A declaration that Section 3 of DOMA, 1 U.S.C. § 7, is unconstitutional as applied to

9 plaintiff to prevent provision of health insurance coverage to her spouse;

10

b. A declaration that Ms. Golinski and her spouse are entitled to such coverage under the

11 FEHB program;

12

c. A permanent injunction enjoining defendants, and those acting at their direction or on

13 their behalf, from interfering with the enrollment of Ms. Golinski’s spouse in her family health

14 insurance plan;

15

d. Costs incurred in maintaining this suit, including attorneys’ fees and costs, pursuant to

16 5 U.S.C. § 504 and 28 U.S.C. § 2412; and

17

e. Such other and further relief as the Court may deem just and proper.

18

19 Dated: April 14, 2011 20 21

MORRISON & FOERSTERLLP
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

22

By:

/s/ James R. McGuire

23

JAMES R. McGUIRE

24

Attorneys for Plaintiff

KAREN GOLINSKI

25

26

27

28

SECOND AMENDED COMPLAINT

17

CASE NO. 3:10-cv-0257-JSW

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 Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page1 of 31

I MICHAEL F. HERTZ

Deputy Assistant Attorney General

2 MELINDA HAAG

United States Attorney

3 ARTHUR R. GOLDBERG

Assistant Branch Director

4 CHRISTOPHER R. HALL

Trial Attorney

5 United States Department of Justice

Civil Division, Federal Programs Branch

6

P.O. Box 883

7 Washington, D.C. 20044

Telephone: (202) 514-4778

8 Facsimile: (202) 616-8470

Email: Christopher.Hall@usdoj.gov

9

Attorneys for Defendants

10

UNITED STATES DISTRICT COURT

II

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

KAREN GOLINSKI

)

14

) No. C 3:10-00257-JSW

Plaintiff,

)

15

)

v.

) DEFENDANTS' BRIEF IN OPPOSITION

16

) TO MOTIONS TO DISMISS

THE UNITED STATES OFFICE OF

)

17 PERSONNEL MANAGEMENT, et a!.

)

)

18

Defendants.

)

19

_

_

___

_

_

____

_

____

_

____

_

_

_

)
)

20

21

22

23

24

25

26

27

28

Defendants' Briefin Opposition to Motions to Dismiss 3:10cv257-JSW

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page2 of 31

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ................................................... -ii-

3 SUMMARY OF ARGUMENT ................................................. -vi-

4 INTRODUCTION AND BACKGROUND .......................................... 1

5 STANDARD OF REVIEW ...................................................... 2

6 ARGUMENT ................................................................. 2

7 I.

DOMA Violates Equal Protection. . ......................................... 2

8

A. Plaintiffs' Equal Protection Challenge to DOMA Is Subject to Heightened

Scrutiny under Supreme Court Precedent. ............................... 3

9

1. Gays and Lesbians Are a Quasi-Suspect or Suspect Class under the

10

Relevant Factors Identified by the Supreme Court................... 6

11

I.

G~ys .and Lesbians Have Been Subject to a History of

D1scnmmat10n......................................... 6

12

Discrimination by the Federal Government ................. 6

13

Discrimination by State and Local Goverrnn(mts ............. 9

14

Discrimination by Private Parties ........................ 12

15

11. Gays and Lesbians Exhibit Immutable Characteristics that

16

Distinguish Them as a Group............................ 12

17

iii. Gays and Lesbians Are Minorities with Limited Political Power. 14

18

IV. Sexual Orientation Bears No Relation to Legitimate Policy

Objectives or Ability to Perform or Contribute to Society...... 16

19

B. DOMA Fails Heightened Scrutiny.................................... 18

20

CONCLUSION .............................................................. 24

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

CASES

3

Able v. United States,

4

968 F. Supp. 850 (E.D.N.Y. 1997), rev'd, 155 F.3d 628 (2d Cir. 1998) .................. 14, 15

5 Ashcroft v. Iqbal, -U.S.-,

129 S. Ct. 1937 (2009) ...................................................................................................... 2

6

Baker v. Nelson,

7

191 N.W.2d 185 (Minn. 1971) .......................................................................................... 3

8 Baker v. Nelson,

409 U.S. 810 (1972) .......................................................................................................... 3

9

Baker v. Wade,

10

553 F. Supp. 1121 (N.D. Tex. 1982) rev'd, 769 F.2d 289 (5th Cir. 1985) ....................... 9

11 Bd. ofEduc. v. Calderon,

110Cal.Rptr.916(1973) ................................................................................................. 9

12

u.s. Bell Atlantic v. Twombly,

13

550 544 (2007) .......................................................................................................... 2

14 Ben-Shalom v. Marsh,

881 F.2d 454 (7th Cir. 1989) ........................................................................................ 5, 6

15

Bolling v. Sharpe,

16

u.s. 347 497 (1954) .......................................................................................................... 2

17 Bottoms v. Bottoms,

457 S.E.2d 102 (Va. 1995) .............................................................................................. 10

18

Boutilier v. INS,

19

387U.S.118(1967) ...................................................................................................... 8,9

20 Bowen v. Bowen,

688 So. 2d 1374 (Miss. 1997) ......................................................................................... 10

21

u.s. Bowen v. Gilliard,

22

483 587 (1987) .......................................................................................................... 4

23 Bowers v. Hardwick,

478 U.S. 186 (1986) ................................................................................................. passim

24

Burton v. Cascade Sch. Dist. Union High Sch., No.5,

25

512 F.2d 850 (9th Cir. 1975) ............................................................................................ 9

26

27

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1 Calhoun v. Pennington,

No. 09-3286 (N.D. Ga.) .................................................................................................. 11

2

Dep 't ofAgriculture v. Moreno,

3

413 u.s. 528 (1973) "" """" """ """ .... """" """ """ """""" """ """ """""" """ """"""" 19

4 Childers v. Dallas Police Dep 't,

513 F. Supp. 134 (N.D. Tex. 1981 ), ajj'd without opinion, 669 F.2d 732 (5th

5

Cir. 1982) .. .. .. .. .. .... ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. .. .. .. .. .. .. .. .. .. .. .... ... .... .. .. .. .. .. .. .. .. .. .. .. ... .. .. ... .. .. .. .. . 9

6 City ofCleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ................................................................................................. passim

7

City ofDallas v. England,

8

846 S.W.2d 957 (Tex. App. 1993) .............................................................................. 9, 10

9 Clark v. Jeter,

586 U.S. 456 (1988) .... .. .. .. .. .... .. .... .. .... .. .. .. .. .. .. .. .... .. .... .. .. .. .. .. .. .. .. .. .. .. .. .... .. .... .. .. .. .. .... .. 3, 18

10

Cook v. Gates,

11

528 F.3d 42 (1st Cir. 2008) ............................................................................................... 5

12 Dep 't ofAgriculture v. Moreno,

413 u.s. 528 (1973) """""" """ """ """ """ """ """ "" """ """""" """""""""""""" """ 19

13

Equality Found v. City ofCincinnati,

14

54 F.3d 261 (6th Cir. 1995) .................................................................... 5, 12, 15

15 Frontiero v. Richardson,

411 U.S. 677 (1973) .................................................................................................. 12, 16

16

Gaylord v. Tacoma Sch. Dist. No. 10,

17

559 P.2d 1340 (Wash. 1977) ............................................................................................. 9

18 Graham v. Richardson,

403 U.S. 365 (1971) .. .. .. .. .. .. .. .. .. .. .. .. .... .. .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 22

19

ExparteHH,

20

830 So. 2d 21 (Ala. 2002) ............................................................................................... 10

21 Hernandez-Montiel v. INS,

225 F.3d 1084 (9th Cir. 2000) ........................................................................................ 13

22

High Tech Gays v. Defense Industrial Security Clearance Office,

23

895 F.2d 563 (9th Cir. 1990) ................................................................................... passim

24 Irvis v. Scott,

318 F. Supp. 1246 (M.D. Pa. 1970) ................................................................................ 10

25

Lawrence v. Texas,

26

53 9 U.S. 55 8 (2003) ................................................................................................. passim

27

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I Lesbian/Gay Freedom Day Comm., Inc. v. INS,

541 F. Supp. 569 (N.D. Cal. 1982) ................................................................................... 8

2

Lofton v. Sec 'y ofthe Dep't ofChildren & Family Servs.,

3

358 F.3d 804 (lith Cir. 2004) .......................................................................................... 5

4 In reMarriage Cases,

183 P.3d 384 (Cal. 2008) ................................................................................................ 15

5

Mathews v. Lucas,

6

427 U.S. 495 (1976) .. .... .. .... .. .... .. .... .. .... .. .. .. .. .. .. .. .. .. .. .... .. .... .. .. .. .. .. .. .. .. .. .. .... .. .... .. .... .. .... .. 14

7 Mass. Bd ofRetirement v. Murgia,

427 U.S. 307 (1976) .. .... .. .... .. .... .. .... .. .... .. .. .. .. .. .. .. .. .. .. .... .. .... .. .... .. .... .. .... .. .... .. .... .. .... .. .. .. .. 17

8

Nat 'l Gay Task Force v. Board ofEducation,

9

729 F.2d 1270 (lOth Cir. 1984) ........................................................................................ 5

10 Pryor v. Mun. Court,

599 P.2d 636 (Cal. 1979) ................................................................................................ II

11

Pulliam v. Smith,

12

501 S.E.2d 898 (N.C. 1998) ............................................................................................ 10

13 Richenberg v. Perry,

97 F.3d 256 (8th Cir. 1996) .............................................................................................. 5

14

Richmondv. J.A. Croson Co.,

15

488 u.s. 469 (1989) "." """ """ """""""" """""" """ "" """""" """ """"""""""" """ "". 3

16 Roe v. Roe,

324 S.E.2d 691 (Va. 1985) .............................................................................................. 10

17

Romer v. Evans,

18

517 U.S. 620 (1996) ................................................................................................. passim

19 Rostker v. Goldberg,

453 U.S. 57 (1981) .. .. .. .. .... .. .. .. .. .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... .. .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 4

20

Baker v. Wade,

21

553 F. Supp. 1121 (N.D. Tex. 1982) rev'd, 769 F.2d 289 (5th Cir. 1985) ....................... 9

22 Shahar v. Bowers,

114 F.3d 1097 (lith Cir. 1997) ........................................................................................ 9

23

St. Paul Citizens for Human Rights v. City Council ofthe City ofSt. Paul,

24

289 N.W.2d 402 (Minn. 1979) (St. Paul, Minnesota in 1978) ....................................... II

25 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ............................................................................................ 5
26 Strauss v. Horton,
27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page6 of 31

207 P .3d 48 (Cal. 2009) .... ............ ...... .................. ...................................... ...... .............. 16

2 Thomasson v. Perry,

80 F.3d 915 (4th Cir. 1996) .......................................................................................... 4, 5

3

United States v. Virginia,

4

u.s. 518

515 (1996) .............................................................................................. 3, 18,20

5 Watkins v. US. Army,

875 F.2d 699 (9th Cir. 1989) .......................................................................................... 14

6

Woodard v. United States,

7

871 F.2d 1068 (Fed. Cir. 1989) ......................................................................................... 5

8 STATUTES
9 H.R. Rep. No. 104-664, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..................... passim
10 H.R. Rep. 111-86, at I 0 (2009) ............................................ ...... ........................................ ......... 12
II S. Res. 280 (81st Congress) .......................................................................................................... 6
12
Ch. 29, § 3, 39 Stat. 874 (1917) .................................................................................................... 8 13
Pub. L. No. 101-649, 104 Stat. 4978 (1990) ................................................................................. 8 14
I U.S.C. § 7 .......................................................................................................................... passim 15
5 U.S.C. §§ 21 05(a)(2) .................................................................................................................. 1 16
5 U.S. C.§ 8901 et seq ................................................................................................................... I 17

18

19

20

21

22

23

24

25

26

27

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1

SUMMARY OF ARGUMENT

2

Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 ("DOMA"), unconstitutionally

3 discriminates. It treats same-sex couples who are legally married under their states' laws

4 differently than similarly situated opposite-sex couples, denying them the status, recognition, and

5 significant federal benefits otherwise available to married persons. Under well-established

6 factors set forth by the Supreme Court, discrimination based on sexual orientation is subject to

7 heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.

8

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications

9 based on sexual orientation, but it has established and repeatedly confirmed a set of factors that

10 guides the determination whether heightened scrutiny applies: (1) whether the group in question

11 has suffered a history of discrimination; (2) whether members of the group "exhibit obvious,

12 irmnutable, or distinguishing characteristics that define them as a group"; (3) whether the group

13 is a minority or is politically powerless; and (4) whether the characteristics distinguishing the

14 group have little relation to legitimate policy objectives or to an individual's "ability to perform

15 or contribute to society." Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City ofCleburne v.

16 Cleburne Living Ctr., 473 U.S. 432,439 (1985). Careful consideration of those factors

17 demonstrates that sexual orientation classifications should be subject to heightened scrutiny.

18

Although binding authority of this circuit holds that rational basis review applies to

19 sexual orientation classifications, see, e.g., High Tech Gays v. Defense Industrial Security

20 Clearance Office, 895 F.2d 563, 570 (9th Cir. 1990), we respectfully submit that this decision no

21 longer withstands scrutiny. To the extent High Tech Gays rested on inferences drawn from the

22 Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that rationale does not

23 survive the Supreme Court's subsequent overruling of Bowers in Lawrence v. Texas, 539 U.S.

24 558 (2003). To the extent High Tech Gays considered the factors the Supreme Court has

25 identified as relevant to the inquiry, we respectfully submit that its consideration was incomplete

26 and ultimately incorrect.

27

Heightened scrutiny should be applied, and Section 3 of DOMA is unconstitutional under

28 that level ofreview.

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I

INTRODUCTION AND BACKGROUND

2

Plaintiff Karen Golinski, a staff attorney with the U.S. Court of Appeals for the Ninth

3 Circuit, is enrolled in the Federal Employees Health Benefits Plan ("FEHBP"). 2d Am. Compl. 4 ~~ 18- I 9. 1 Since August 2008, Plaintiff has been married under the laws of California to a 5 spouse who, like Plaintiff, is a woman. !d. ~ I 7. After becoming married, Plaintiff sought to 6 have her wife enrolled as an additional beneficiary under her FEHBP plan. !d. ~ 22. Plaintiffs

7 efforts to have her wife enrolled as an additional beneficiary were ultimately unsuccessful, as the

8 FEHBA, 5 U.S.C. §§ 8901-8914, when read in light of Section 3 of the Defense of Marriage Act,

9 1 U.S.C. § 7 ("DOMA"), prohibits the extension ofFEHBP coverage to same-sex spouses. In I0 pertinent part, DOMA provides:

II

In determining the meaning of any Act of Congress, or of any ruling, regulation, or

interpretation ofthe various administrative bureaus and agencies ofthe United States,

I 2

the word "marriage" means only a legal union between one man and one woman as

husband and wife, and the word "spouse" refers only to a person of the opposite sex

I 3

who is a husband or wife.

14 I U.S.C. § 7.

15

After the completion of an administrative hearing process under the Ninth Circuit's

16 Employee Dispute Resolution ("EDR") Plan, Plaintiff brought the instant action on January 20,

I 7 20 I 0.' Plaintiffs First Amended Complaint was dismissed by this Court on March 16, 20 II.

18 ECF No. 98. On April 14,201 I, Plaintiff filed her Second Amended Complaint, ECF No. 102,

19

20 1 The FEHBP was established pursuant to the Federal Employees Health Benefits Act, 5 U.S.C. 21 §§ 890 I et seq. ("FEHBA"), which created the FEHBP as a comprehensive health insurance
program for federal civilian employees, their family members, and others. FEHBA confers broad 22 authority on the United States Office of Personnel Management ("OPM") to administer the 23 program and to promulgate regulations necessary to carry out the statute's objectives, including
regulations prescribing "the manner and conditions under which an employee is eligible to 24 enroll." 5 U.S.C. § 8913. FEHBA grants OPM authority to contract with "qualified carriers"
offering health insurance plans. 5 U.S.C. §§ 8902, 8903, 8906. The "employees" who may 25 participate in the FEHBP include employees of the Judiciary. 5 U.S.C. §§ 2105(a)(2), 26 890I(I)(A).
27 2 A more detailed recitation of the factual and procedural history ofthis case is set forth in this Court's Order Granting Motion to Dismiss and Denying Motion for Preliminary Injunction of
28 March 16,2011, at 2-5 and passim. ECF No. 98.

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I which now asserts that DOMA is unconstitutional as applied to her. It is to that constitutional

2 argument that this brief is addressed. Plaintiff also appears to assert that the Defendants

3 incorrectly or unreasonably read FEHBA to deny Plaintiffs request for the enrollment of her

4 wife as an additional beneficiary under the plan. As set forth in the memorandum in support of

5 Defendants' motion to dismiss, ECF No. I I8-I, such claim should be dismissed to the extent it is

6 adequately asserted in the first instance.

7

Plaintiffs wife remains uncovered by Plaintiff's FEHBP plan.

8

STANDARD OF REVIEW

9

To withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint "must

IO

contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its

I I

face."' Ashcroft v. Iqbal,- U.S.-, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic v.

I2

Twombly, 550 U.S. 544, 570 (2007)). Under Iqbal and Twombly, "[a] claim has facial

13

plausibility when the pleaded factual content allows the court to draw the reasonable inference

I4

that the defendant is liable for the misconduct alleged." !d.

IS

ARGUMENT

I6

I.

DOMA VIOLATES EQUAL PROTECTION.

I7

The Constitution's guarantee of equal protection ofthe laws, applicable to the federal

I8

government through the Due Process Clause ofthe Fifth Amendment, see Bolling v. Sharpe, 347

I9

U.S. 497, 500 (1954), embodies a fundamental requirement that "all persons similarly situated

20

should be treated alike." City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,439 (1985).

2I

DOMA Section 3 is inconsistent with that principle of equality, as it denies legally married same-

22

sex couples federal benefits that are available to similarly situated opposite-sex couples.

23

For the reasons set forth below, heightened scrutiny, rather than rational basis review, is

24

the appropriate standard of review for classifications based on sexual orientation. Under that

25

more rigorous standard, Section 3 of DOMA cannot withstand constitutional muster.

26

27

28

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1

A.

PLAINTIFFS' EQUAL PROTECTION CHALLENGE TO DOMA IS

SUBJECT TO HEIGHTENED SCRUTINY UNDER SUPREME COURT

2

PRECEDENT.

3

As a general rule, legislation challenged under equal protection principles is presumed

4 valid and sustained as long as the "classification drawn by the statute is rationally related to a 5 legitimate state interest." Cleburne, 473 U.S. at 440. "[W]here individuals in the group affected

6 by a law have distinguishing characteristics relevant to interests the [government] has authority

7 to implement," courts will not "closely scrutinize legislative choices as to whether, how, and to

8 what extent those interests should be pursued." !d. at 441. Where, however, legislation classifies

9 on the basis of a factor that "generally provides no sensible ground for differential treatment,"

I0 such as race or gender, the law demands more searching review and imposes a greater burden on

11 the government to justifY the classification. !d. at 440-41.

12

Such suspect or quasi-suspect classifications are reviewed under a standard of heightened

13 scrutiny, under which the government must show, at a minimum, that a law is "substantially

14 related to an important government objective." Clarkv. Jeter, 586 U.S. 456,461 (1988). This

15 more searching review enables courts to ascertain whether the government has employed the

16 classification for a significant and proper purpose, and serves to prevent implementation of

17 classifications that are the product of impe1missible prejudice or stereotypes. See, e.g.,

18 Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); United States v.

19 Virginia ("VMI"), 518 U.S. 515, 533 {1996).

20

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications

21 based on sexual orientation.3 It has, however, established and repeatedly confirmed a set of

22

23 3 In neither Romer v. Evans, 517 U.S. 620 (1996), nor Lawrence v. Texas, 539 U.S. 558 (2003),

24 did the Supreme Court opine on the applicability of heightened scrutiny to sexual orientation. In both cases, the Court invalidated sexual orientation classifications under a more permissive

25 standard of review without having to decide whether heightened scrutiny applied (Romer found

26

that the legislation failed rational basis review, 517 U.S. at 634-35; Lawrence found the law invalid under the Due Process Clause, 539 U.S. at 574-75).

27

Nor did the Court decide the question in its one-line per curiam order in Baker v. Nelson,

409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court

28 decision denying marriage status to a same-sex couple, id. at 810. Baker did not concern the

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1 factors that guide the determination of whether heightened scmtiny applies to a classification that

2 singles out a particular group. These include: (1) whether the group in question has suffered a

3 history of discrimination; (2) whether members of the group "exhibit obvious, immutable, or

4 distinguishing characteristics that define them as a discrete group"; (3) whether the group is a

5 minority or is politically powerless; and (4) whether the characteristics distinguishing the group

6 have little relation to legitimate policy objectives or to an individual's "ability to perform or

7 contribute to society." See Bowen v. Gilliard, 483 U.S. 587,602-03 (1987); Cleburne, 473 U.S.

8 at 441-42.

9

Although there is substantial circuit court authority, including binding authority of this

I 0 circuit, holding that rational basis review generally applies to sexual orientation classifications,

11 see, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 570 (9th Cir.

12 1990), most of these decisions fail to give adequate consideration to these enumerated factors.

13 Indeed, the reasoning of this line of case law traces back to circuit court decisions from the late

14 1980s and early 1990s, a time when Bowers v. Hardwick, 478 U.S. 186 (1986), was still the law.

15 The Supreme Court subsequently overmled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003),

16 and the reasoning of these circuit decisions no longer withstands scrutiny.

17

In High Tech Gays, for example, the Ninth Circuit considered a constitutional challenge

18 to the Department of Defense's practice of conducting mandatory investigations of security

19 clearance applicants known or suspected to be gay. Without expressly relying on the deference 20 due to military judgments, cf Rostker v. Goldberg, 453 U.S. 57, 70 (1981), the court concluded

21

22

23 constitutionality of a federal law, like DOMA Section 3, that distinguishes among couples who
24 are already legally manied in their own states, and was motivated by animus toward gay and lesbian people. See Part I.B, infra. Moreover, neither the Minnesota Supreme Court decision,
25 Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), nor the questions presented in the
plaintiffs' jurisdictional statement raised whether classifications based on sexual orientation are 26 subject to heightened scrutiny, see Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Sup.
27 Ct.), at 2; see also id. at 13 (repeatedly describing equal protection challenge as based on the "arbitrary" nature of the state law). There is no indication in the Court's order that the Court
28 nevertheless considered, much less resolved, that question.

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I that the challenged classification was subject only to rational basis review.4 To the extent that

2 conclusion rested on inferences drawn from the Supreme Court's decision in Bowers, see High

3 Tech Gays, 895 F.2d at 574, that rationale does not survive the overruling of Bowers in

4 Lawrence. And to the extent High Tech Gays considered the factors the Supreme Court has

5 identified as relevant to the inquiry, see High Tech Gays, 895, F.2d at 573-74, we respectfully

6 submit that its consideration was incomplete and ultimately incorrect for the reasons explained

7 below.5 Careful consideration of those factors demonstrates that classifications based on sexual

8 orientation should be subject to heightened scrutiny.

9

10

II

12
13 4 High Tech Gays and a number of cases in other circuits involved challenges to military policy on homosexual conduct. See, e.g., High Tech Gays, 895 F.2d at 565; see also Cook v. Gates, 528
14 F.Jd 42, 45 (1st Cir. 2008); Richenberg v. Perry, 97 FJd 256, 258 (8th Cir. 1996); Thomasson v. Perry, 80 FJd 915, 919 (4th Cir. 1996); Steffan v. Perry, 4! F.3d 677,682 (D.C. Cir. 1994) (en
15 bane); Woodard v. United States, 871 F.2d I 068, 1069 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 16 881 F.2d 454,456 (7th Cir. 1989). Classifications in the military context, however, present
different questions from classifications in the civilian context, see, e.g., Rostker v. Goldberg, 453 17 U.S. 57,66 (1981), and the military is not involved here.

18 5 As noted above, other courts of appeals have held that classifications on the basis of sexual

19

orientation are not subject to heightened scrutiny, but the reasoning of these courts is similarly flawed. Many of those courts relied in part or in whole on Bowers. See Equality Found. v. City

20 ofCincinnati, 54 FJd 261, 266-67 & n. 2 (6th Cir. 1995); Steffan, 41 F.3d at 685; Woodward,

871 F.2d at 1076 (Fed. Cir. 1989); Ben-Shalom, 881 F.2d at 464; see also Richenberg v. Perry,

21 97 FJd at 260 (citing to reasoning of prior appellate decision that were based on Bowers);

22

Thomasson, 80 F.3d at 928 (same). Other courts relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect or quasi-suspect class. Cook, 528 FJd

23 at 61; Johnson v. Johnson, 358 F.3d 503,532 (5'h Cir. 2004). Though it is true that the Supreme

Court thus far has not yet recognized that gays and lesbians constitute a suspect class, see Note 3,

24 supra, the Supreme Court does not decide a question by failing to opine on it in dicta

25

unnecessary to the resolution of a case. Finally, the remaining courts to address the issue offered no pertinent reasoning in so doing. Lofton v. Sec 'y ofthe Dep 't ofChildren & Family Servs., 358

26 FJd 804, 818 (11th Cir. 2004); Nat 'I Gay Task Force v. Bd. ofEduc., 729 F.2d 1270, 1273 (1Oth

Cir. 1984). 27

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I

1. Gays and Lesbians Are a Quasi-Suspect or Suspect

Class under the Relevant Factors Identified by the

2

Supreme Court.

3

i.

Gays and Lesbians Have Been Subject to

a History of Discrimination.

4

First, as the Ninth Circuit has previously recognized, gay and lesbian individuals have

5

suffered a long and significant history of purposeful discrimination. See High Tech Gays, 895

6

F.2d at 574 ("[W]e do agree that homosexuals have suffered a history of discrimination ....");

7

see also Ben-Shalom v. Marsh, 881 F.2d 454,465-66 (7th Cir. 1989) (noting that

8

"[h]omosexuals have suffered a history of discrimination and still do, though possibly now in

9

less degree"). So far as we are aware, no court to consider this question has ever ruled otherwise.

10

Discrimination against gay and lesbian individuals has a long history in this country,

II

Bowers, 478 U.S. at 192, from colonial laws ordering the death of"any man [that] shall lie with

12

mankind, as he lieth with womankind" to state laws that, until very recently, have "demean[ed]

13

the[] existence" of gay and lesbian people "by making their private sexual conduct a crime,"

14

Lawrence, 539 U.S. at 578. In addition to the discrimination reflected in DOMA itself, as

15

explained below, the federal government, state and local governments, and private parties all

16

have contributed to this long history of discrimination."

17

Discrimination by the Federal Government

18

The federal government has played a significant and regrettable role in the history of

19

discrimination against gay and lesbian individuals.

20

For years, the federal government deemed gays and lesbians unfit for employment,

21

22 6 We do not understand the Supreme Court to have called into question this well-documented

23 history when it said in Lawrence that "it was not until the 1970's that any State singled out

same-sex relations for criminal prosecution," 539 U.S. at 570, and that only nine States had done 24 so by the time of Lawrence. The question before the Court in Lawrence was whether, as Bowers

25 had asserted, same-sex sodomy prohibitions were so deeply rooted in history that they could not be understood to contravene the Due Process Clause. That the Court rejected that argument and

26 invalidated Texas's sodomy law on due process grounds casts no doubt on the duration and scope

of discrimination against gay and lesbian people writ large. 27

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I barring them from federal jobs on the basis of their sexual orientation. See Employment of

2 Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee

3 by its Subcommittee on Investigations pursuant to S. Res. 280 (8lst Congress), December 15,

4 1950 ("Interim Report"), at 9. In 1950, Senate Resolution 280 directed a Senate subcommittee

5 "to make an investigation in the employment by the Government of homosexuals and other

6 sexual perverts." Patricia Cain, Litigatingfor Lesbian and Gay Rights: A Legal History, 79 Va.

7 L. Rev. 1551, 1565-66 (1993). The Committee found that from 1947 to 1950, "approximately

8 I,700 applicants for federal positions were denied employment because they had a record of

9 homosexuality or other sex perversion." Interim Report at 9.

I 0

In April 1953, in the wake of the Senate investigation, President Eisenhower issued

II Executive Order 10450, which officially added "sexual perversion" as a ground for investigation

12 and possible dismissal from federal service. Exec. Order No. I 0450, 3 C.P.R. 936, 938 (1953);

13 see also 81 Fed. Reg. 2489. The Order expanded the investigations of civilian employees for

14 "sexual perversion" to include every agency and department of the federal government, and thus

15 had the effect of requiring the termination of all gay people from federal employment. See

16 General Accounting Office, Security Clearances: Consideration ofSexual Orientation in the

17 Clearance Process, at 2 (Mar. 1995).

18

The federal government enforced Executive Order 10450 zealously, engaging various

19 agencies in intrusive investigatory techniques to purge gays and lesbians from the federal civilian

20 workforce. The State Department, for example, charged "'skilled' investigators" with

21 "interrogating every potential male applicant to discover if they had any effeminate tendencies or

22 mannerisms," used polygraphs on individuals accused of homosexuality who denied it, and sent

23 inspectors "to every embassy, consulate, and mission" to uncover homosexuality. Edward L.

24 Tulin, Note, Where Everything Old Is New Again~Enduring Episodic Discrimination Against

25 Homosexual Persons, 84 Tex. L. Rev. 1587, 1602 (2006). In order to identify gays and lesbians

26 in the civil service, the FBI "sought out state and local police officers to supply arrest records on

27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page15 of 31

I morals charges, regardless of whether there were convictions; data on gay bars; lists of other

2 places frequented by homosexuals; and press articles on the largely subterranean gay world."

3 Williams Institute, "Documenting Discrimination on the Basis of Sexual Orientation and Gender

4 Identity in State Employment," ch. 5 at 7, available at

5 http://www.law.ucla.edu/williamsinstitute/programs/EmploymentReports_ENDA.html

6 ("Williams Report"). The United States Postal Service ("USPS"), for its part, aided the FBI by

7 establishing "a watch list on the recipients of physique magazines, subscrib[ing] to pen pal clubs,

8 and initiat[ing] correspondence with men whom [it] believed might be homosexual." I d. The

9 mail of individuals concluded to be homosexual would then be traced "in order to locate other

I0 homosexuals." Id. The end result was thousands of men and women forced from their federal

II jobs based on the suspicion that they were gay or lesbian. It was not until 1975 that the Civil

12 Service Commission prohibited discrimination on the basis of sexual orientation in federal

13 civilian hiring. See General Accounting Office, Security Clearances: Consideration ofSexual

14 Orientation in the Clearance Process (1995) (describing the federal goverrunent's restrictions on

15 the employment of gay and lesbian individuals)."

16

The history of the federal government's discrimination against gays and lesbians extends

17 beyond the employment context. For decades, gay and lesbian noncitizens were categorically

18 barred from entering the United States, on grounds that they were "persons of constitutional

19 psychopathic inferiority," "mentally defective," or sexually deviant. Lesbian/Gay Freedom Day

20 Comm., Inc. v. INS, 541 F. Supp. 569, 571-72 (N.D. Cal. 1982) (quoting Ch. 29, § 3, 39 Stat.

21 874 (1917)). As the Supreme Court held in Boutilier v. INS, 387 U.S. 118 (1967), "[t]he

22 legislative history of [the Immigration and Nationality Act of 1952] indicates beyond a shadow

23 of a doubt that the Congress intended the phrase 'psychopathic personality' to include

24

25 7 Open military service by gays and lesbians was prohibited, first by regulation and then by statute, I 0 U.S. C. § 654 (2007), until the "Don't Ask, Don't Tell" Repeal Act, enacted last year,

26 111 P.L. 321, 124 Stat. 3515 (2010), and remains so pending completion of the repeal process
mandated by the Act. 27

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I homosexuals." !d. at 120. This exclusion remained in effect until Congress repealed it in 1990.

2 See Pub. L. No. 101-649, 104 Stat. 4978 (1990).

3

Discrimination by State and Local Governments

4

Like the federal government, state and local governments have long discriminated against

5 gays and lesbians in public employment. By the 1950s, many state and local governments had

6 banned gay and lesbian employees, as well as gay and lesbian "employees of state funded schools

7 and colleges, and private individuals in professions requiring state licenses." Williams Report,

8 ch. 5 at 18. Many states and localities began aggressive campaigns to purge gay and lesbian

9 employees from government services as early as the 1940s. !d. at 18-34.

I 0

This employment discrimination was interrelated with longstanding state law prohibitions

II on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians

12 had engaged in criminalized and immoral sexual conduct. See, e.g., Childers v. Dallas Police

13 Dep't, 513 F. Supp. 134,138 (N.D. Tex. 1981) (holding that police could refuse to hire gays),

14 aff'd without opinion, 669 F.2d 732 (5th Cir. 1982); Gaylord v. Tacoma Sch. Dist. No. I 0, 559

15 P.2d 1340, 1342 (Wash. 1977) (upholding the dismissal of a openly gay school teacher who was

16 fired based on a local school board policy that allowed removal for "immorality"); Burton v.

17 Cascade Sch. Dist. Union High Sch., No.5, 512 F.2d 850, 851 (9th Cir. 1975) (upholding the

18 dismissal of a lesbian teacher in Oregon, after adopting a resolution stating that she was being

19 terminated "because of her immorality of being a practicing homosexual"); Bd. ofEduc. v.

20 Calderon, 110 Cal. Rptr. 916,919 (1973) (holding that state sodomy statute was a valid ground

21 for discrimination against gays as teachers); see also Baker v. Wade, 553 F. Supp. 1121, 1128 n.9

22 (N.D. Tex. 1982) ("A school board member testified that [the defendant] would have been fired

23 [from his teaching position] ifthere had even been a suspicion that he had violated [the Texas

24 sodomy statute].") rev 'd, 769 F.2d 289 (5th Cir. 1985) (holding that challenged Texas

25 homosexual sodomy law was constitutional). Some of these discriminatory employment policies

26 continued into the 1990s. See Shahar v. Bowers, 114 F.3d I 097, 1105 & n.17, 1107-10 (lith

27

28 Defendants' Briefin Opposition to Motions to Dismiss 3: !Ocv257-JSW

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page17 of 31

I Cir. 1997) (en bane) (upholding Georgia Attorney General's Office's rescission of a job offer to

2 plaintiff after she mentioned to co-workers her upcoming wedding to her same-sex partner); City

3 ofDallas v. England, 846 S. W.2d 957 (Tex. App. 1993) (holding unconstitutional Dallas Police

4 Department policy denying gays and lesbians employment).

5

Based on similar assumptions regarding the criminal sexual conduct of gays and lesbians,

6 states and localities also denied child custody and visitation rights to gay and lesbian parents.

7 See, e.g., Ex parte HH, 830 So. 2d 21,26 (Ala. 2002) (Moore, C.J., concurring) (concurring in

8 denial of custody to lesbian mother on ground that "homosexual conduct is ... abhorrent,

9 immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's

IO God [and] an inherent evil against which children must be protected."); Pulliam v. Smith, 501

II S.E.2d 898, 903-04 (N.C. I 998) (upholding denial of custody to a gay man who had a same-sex

12 partner; emphasizing that father engaged in sexual acts while umnarried and refused to "counsel

13 the children against such conduct"); Bowen v. Bowen, 688 So. 2d I374, I38I (Miss. 1997)

14 (holding that a trial court did not err in granting a father custody of his son on the basis that

15 people in town had rumored that the son's mother was involved in a lesbian relationship);

16 Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. I995) (noting that, although the Court had

17 previously held "that a lesbian mother is not per se an unfit parent," the"[c]onduct inherent in

I 8 lesbianism is punishable as a Class 6 felony in the Commonwealth" and therefore "that conduct

I 9 is another important consideration in determining custody"); Roe v. Roe, 324 S.E.2d 691,692,694

20 (Va. I985) (holding that father, who was in a gay relationship, was "an unfit and improper

21 custodian as a matter of law" because ofhis "continuous exposure of the child to his immoral

22 and illicit relationship").

23

State and local law also has been used to prevent gay and lesbian people from associating

24 freely. Liquor licensing laws, both on their face and through discriminatory enforcement, were

25 long used to harass and shut down establishments patronized by gays and lesbians. See William

26 . N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid ofthe Closet, 1946-I 96 I, 24 Fla. St.

27

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1 U. L. Rev. 703, 762-66 (1997) (describing such efforts in New York, New Jersey, Michigan,

2 California, and Florida); see also lrvis v. Scott, 318 F. Supp. 1246, 1249 (M.D. Pa. 1970)

3 (describing such efforts in Pennsylvania). State and local police also relied on laws prohibiting

4 lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and

5 lesbian people congregated in public. See, e.g., Pryor v. Mun. Court, 599 P.2d 636, 644 (Cal.

6 1979) ("Three studies of law enforcement in Los Angeles County indicate[d] that the

7 overwhelming majority of arrests for violation of [the 'lewd or dissolute' conduct statute]

8 involved male homosexuals."); Steven A. Rosen, Police Harassment ofHomosexual Women and

9 Men in New York City, 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159, 162-63 (1982); Florida

10 State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and

11 Citizenship in Florida, at 14 (1964) ("Many homosexuals are picked up and prosecuted on

12 vagrancy or similar non-specific charges, fined a moderate amount, and then released."). Similar

13 practices persist to this day. See, e.g., Calhoun v. Pennington, No. 09-3286 (N.D. Ga.)

14 (involving September 2009 raid on Atlanta gay bar and police harassment of patrons); Settlement

15 in Gay Bar Raid, N.Y. Times (Mar. 23, 2011) (involving injuries sustained by gay bar patron

16 during raid by Fort Worth police officers and the Texas Alcoholic Beverage Commission).

17

Efforts to combat discrimination against gays and lesbians also have led to significant

18 political backlash, as evidenced by the long history of successful state and local initiatives

19 repealing laws that protected gays and lesbians from discrimination. See also Part LA. I .iii.,

20 infra. A rash of such initiatives succeeded in the late 1970s. See, e.g., Christopher R. Leslie, The

21 Evolution ofAcademic Discourse on Sexual Orientation and the Law, 84 Chi. Kent L. Rev. 345,

22 359 (2009) (Boulder, Colorado in 1974); Rebecca Mae Salokar, Note, Gay and Lesbian

23 Parenting in Florida: Family Creation Around the Law, 4 Fla. Int'l. U. L. Rev. 473, 477 (2009)

24 (Dade County, Florida in 1977); St. Paul Citizens for Human Rights v. City Council ofthe City of

25 St. Paul, 289 N. W.2d 402, 404 (Minn. 1979) (St. Paul, Minnesota in 1978); Gay rights

26 referendum in Oregon, Washington Post, May 11 (1978), at Al4 (Wichita, Kansas in 1978); Why

27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page19 of 31

I tide is turning against homosexuals, U.S. News & World Report (June 5, 1978), at 29 (Eugene,

2 Oregon in 1978). The laws at issue in Romer and in Equality Foundation v. City ofCincinnati,

3 54 F.3d 261 (6th Cir. 1995), are just two of a number of more recent examples from the 1990s.

4 In fact, in May 2011, the Tennessee legislature enacted a law stripping counties and

5 municipalities of their ability to pass local non-discrimination ordinances that would prohibit

6 discrimination on the basis of sexual orientation, and repealing the ordinances that had recently

7 been passed by Nashville and other localities.8 Similar responses have followed states' decisions

8 to recognize same-sex marriages. See irifra at 15.

9

Discrimination by Private Parties

10

Finally, private discrimination against gays and lesbians in employment and other areas

II has been pervasive and continues to this day.' See, e.g., Williams Report, ch. 5 at 8-9

12 (explaining that private companies and organizations independently adopted discriminatory

13 employment policies modeled after the federal government's, and as "federal employers shared

14 police and military records on gay and lesbian individuals with private employers, these same

15 persons who were barred from federal employment on the basis of their sexual orientation were

16 simultaneously blacklisted from employment by many private companies"). The pervasiveness

17 of private animus against gays and lesbians is underscored by statistics showing that gays and

18 lesbians continue to be among the most frequent victims of all reported hate crimes. See H.R.

19 Rep. 111-86, at 10 (2009) ("According to 2007 FBI statistics, hate crimes based on the victim's

20 sexual orientation-gay, lesbian, or bisexual--constituted the third highest category

21

22 8 See State of Tennessee, Public Chapter No. 278, available at
23 http://state.tn.us/sos/acts/1 07/pub/pc0278 .pdf.

24 9 Private discrimination, as well as official discrimination, is relevant to whether a group has

25 suffered a history of discrimination for purposes of the heightened scrutiny inquiry. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) ("[W]omen still face pervasive, although at

26 times more subtle, discrimination in our educational institutions, in the job market and, perhaps
most conspicuously, in the political arena."). 27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page20 of 31

I reported-1,265 incidents, or one-sixth of all reported hate crimes."); Kendall Thomas, Beyond

2 the Privacy Principle, 92 Colum. L. Rev. 1431, 1464 (1992).

3

In sum, gays and lesbians have suffered a long history of discrimination based on

4 prejudice and stereotypes. That history counsels strongly in favor of heightened scrutiny, giving

5 courts ample reason to question whether sexual orientation classifications are the product of

6 hostility rather than a legitimate government purpose.

7

ii. Gays and Lesbians Exhibit Immutable

Characteristics that Distinguish Them as

8

a Group.

9

Over ten years ago, in considering whether gays and lesbians constituted a "particular

10 social group" for asylum purposes, the Ninth Circuit recognized that "[s]exual orientation and

II sexual identity are immutable," and that "[h]omosexuality is as deeply ingrained as

12 heterosexuality." Hernandez-Montiel v. INS, 225 F.3d I 084, I 093 (9th Cir. 2000) (internal

13 quotation marks omitted). But see High Tech Gays, 895 F.2d at 573 (stating that sexual

14 orientation is not immutable because "it is behavioral"). Sexual orientation, the Ninth Circuit

15 explained, is "fundamental to one's identity," and gay and lesbian individuals "should not be

16 required to abandon" it to gain access to fundamental rights guaranteed to all people.

17 Hernandez-Montiel, 225 F.3d at 1093.

18

That conclusion is consistent with tbe overwhelming consensus in the scientific

19 community that sexual orientation is an immutable characteristic. See e.g., G.M. Herek, eta!.

20 Demographic, Psychological, and Social Characteristics ofSelf-Identified Lesbian, Gay, and

21 Bisexual Adults, 7, 176-200 (2010), available at

22 http://www.springerlink.com/content//fulltext.pdf (noting that in a national survey conducted

23 with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95

24 percent of the gay men and 83 percent of lesbian women reported that they experienced "no

25 choice at all" or "very little choice" about their sexual orientation). There is also a consensus

26 among the established medical community that efforts to change an individual's sexual

27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page21 of 31

1 orientation are generally futile and potentially dangerous to an individual's well-being.10 See

2 Am. Psychological Ass'n, Report ofthe American Psychological Association Task Force on

3 Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), available at

4 http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf ("[E]fforts to change

5 sexual orientation are unlikely to be successful and involve some risk of harm."); see also

6 Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing "failure of treatment strategies

7 ... to alter homosexual orientation"); Douglas Haldeman, The Practice and Ethics ofSexual

8 Orientation Conversion Therapy, 62 J. Consulting & Clinical Psycho!. 221, 226 (1994)

9 (describing "lack of empirical support for conversion therapy").

I 0

Furthermore, sexual orientation need not be a "visible badge" that distinguishes gays and

11 lesbians as a discrete group for the classification to warrant heightened scrutiny. As the Supreme

12 Court has made clear, a classification may be "constitutionally suspect" even if it rests on a

13 characteristic that is not readily visible, such as illegitimacy. Mathews v. Lucas, 427 U.S. 495,

14 504 (1976); see id at 506 (noting that "illegitimacy does not carry an obvious badge, as race or

15 sex do," but nonetheless applying heightened scrutiny). Whether or not gays and lesbians could

16 hide their identities in order to avoid discrimination, they are not required to do so. As the Court

17 has recognized, sexual orientation is a core aspect of identity, and its expression is an "integral

18 part of human freedom," Lawrence, 539 U.S. at 562, 576-77.

19

iii. Gays and Lesbians Are Minorities with

Limited Political Power.

20

Third, gays and lesbians are a minority group,'' Able v. United States, 968 F. Supp. 850,

21

22 10 In fact, every major mental health organization has adopted a policy statement cautioning
23 against the use of so-called "conversion" or "reparative" therapies to change the sexual orientation of gays and lesbians. These policy statements are reproduced in a 2009 publication of
24 the American Psychological Association, available at 25 http://www.apa.org/pi/lgbt/resources/just-the-facts. pdf.

26 11 It is difficult to offer a definitive estimate for the size of the gay and lesbian community in the

United States. According to an analysis of various data sources published in April 20 II by the 27

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1 863 (E.D.N.Y. 1997), rev 'd, !55 F.3d 628 (2d Cir. 1998), that has historically lacked political

2 power. To be sure, many ofthe forms of historical discrimination described above have subsided

3 or been repealed. But efforts to combat discrimination have frequently led to successful

4 initiatives to scale back protections afforded to gay and lesbian individuals. See also Part

5 I.A.l.i., supra. As described above, the adoption of ballot initiatives specifically repealing laws

6 protecting gays and lesbians from discrimination (including the laws at issue in Romer and

7 Equality Foundation v. City a/Cincinnati) are examples of such responses. In fact, "[f]rom 1974

8 to 1993, at least 21 referendums were held on the sole question of whether an existing law or

9 executive order prohibiting sexual orientation discrimination should be repealed or retained. In

10 15 of these 21 cases, a majority voted to repeal the law or executive order." Robert Wintemute,

II Sexual Orientation and Human Rights 56 (1995).

12

The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has

13 been followed in the 2000s with similar political backlashes against same-sex marriage. In 1996,

14 at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex

15 couples. National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and

16 Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=l6430 (last updated

17 May 2011). Today, thirty-seven states have such statutes, and thirty states have constitutional

18 amendments explicitly restricting marriage to opposite-sex couples. Id.

19

California and Iowa are recent examples of such backlash. In May 2008, the California

20 Supreme Court held that the state was constitutionally required to recognize same-sex marriage.

21 In reMarriage Cases, 183 P.3d 384,419 (Cal. 2008). In November 2008, California's voters

22

23 Williams Institute, there appear to be 8 million adults in the United States who are lesbian, gay or

bisexual, comprising 3.5 percent of the adult population. See Gary J. Gates, How Many People

24 Are Lesbian, Gay, Bisexual, and Transgender? available at

25 http://www3.law.ucla.edu/williamsinstitute/pdf/How-many-people-are-LGBT-Final.pdf (last reviewed June 30, 2011). Ascertaining the precise percentage of gays and lesbians in the

26 population, however, is not relevant to the analysis, as it is clear that whatever the data reveal,

there is no dispute that gays and lesbians constitute a minority in the country. 27

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passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex

2 couples. See Strauss v. Horton, 207 P.3d 48, 120 (Cal. 2009). In November 2010, when three

3 Iowa state supreme court justices who had been part of a unanimous decision legalizing same-sex

4 marriage were up for reelection, Iowa voters recalled all of them. See A. G. Sulzberger, Ouster of

5 Iowa Judges Sends Signal to Bench, N.Y. Times (Nov. 3, 201 0).

6

Beyond these state ballot initiatives, the relatively recent passages of anti-sodomy laws

7 singling out same-sex conduct, such as the Texas law the Supreme Court ultimately invalidated

8 in Lawrence, indicate that gays and lesbians lack the consistent "ability to attract the [favorable]

9 attention of the lawmakers." Cleburne, 473 U.S. at 445.

I 0

This is not to say that the political process is closed entirely to gay and lesbian people.

II But complete foreclosure from meaningful political participation is not the standard by which the

12 Supreme Court has judged "political powerlessness." When the Court ruled in 1973 that gender-

13 based classifications were subject to heightened scrutiny, Frontiero v. Richardson, 411 U.S. 677

14 (1973), women already had won major political victories including a constitutional amendment

15 granting the right to vote and protection against employment discrimination under Title VII. As

16 Frontiero makes clear, the "political power" factor does not require a complete absence of

17 political protection, and its application is not intended to change with every political success.12

18

iv. Sexual Orientation Bears No Relation to

Legitimate Policy Objectives or Ability to

19

Perform or Contribute to Society.

20

Even where other factors might point toward heightened scrutiny, the Court has declined

21 to treat as suspect those classifications that generally bear on "ability to perform or contribute to

22 society." See Cleburne, 473 U.S. at 441 (mental disability not a suspect classification) (internal

23

24 12 In dete1mining that gender classifications warranted heightened scrutiny, the plurality in

25 Frontiero noted that "in part because of past discrimination, women are vastly underrepresented in this Nation's decision-making councils. There has never been a female President, nor a female

26 member of this comi. Not a single woman presently sits in the United States Senate, and only 14

women hold seats in the House of Representatives." 411 U.S. at 686 n. 17 (plurality opinion). 27

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Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page24 of 31

1 quotation omitted); see also Mass. Bd. ofRetirement v. Murgia, 427 U.S. 307, 315 (1976) (age

2 not a suspect classification).

3

Sexual orientation is not such a classification. As the history described above makes

4 clear, prior discrimination against gay and lesbian people has been rested not on their ability to

5 contribute to society, but on the basis of invidious and long-discredited views that gays and

6 lesbians are, for example, sexual deviants or mentally ill. See Part I.A. I .i., supra. As the

7 American Psychiatric Association stated more than 35 years ago, "homosexuality per se implies

8 no impairment in judgment, stability, reliability or general social or vocational capabilities."

9 Resolution of the Am. Psychiatric Ass'n (Dec. I 5, 1973); see also Minutes ofthe Annual Meeting

10 ofthe Council ofRepresentatives, 30 Am. Psychologist 620, 633 (1975) (reflecting a similar

11 American Psychological Association statement).

12

Just as a person's gender, race, or religion does not bear an inherent relation to a person's

13 ability or capacity to contribute to society, a person's sexual orientation bears no inherent relation

14 to ability to perform or contribute. President Obama elaborated on this principle in the context of

15 the military when he signed the Don't Ask, Don't Tell Repeal Act of2010:

16

[S]acrifice, valor and integrity are no more defined by sexual orientation than they are by

race or gender, religion or creed.... There will never be a full accounting of the heroism

17

demonstrated by gay Americans in service to this country; their service has been obscured

in history. It's been lost to prejudices that have waned in our own lifetimes. But at every

18

turn, every crossroads in our past, we know gay Americans fought just as hard, gave just

as much to protect this nation and the ideals for which it stands.

19

White House, Remarks by the President and Vice President at Signing of the Don't Ask, Don't

20

Tell Repeal Act of2010 (Dec. 22, 2010), available at

21

http://www.whitehouse. gov/the-press-office/20 10/12/22/remarks-president-and-vice-president-si

22

gning - d o n ' t-ask- d o n ' t - tell- repeal -a.

23

The Supreme Court has also recognized that, although opposition to homosexuality,

24

though it may reflect deeply held personal religious and moral views, it is not a legitimate policy

25

objective. Lawrence, 539 U.S. at 577 ("[T]he fact that a governing majority in a State has

26

traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a Jaw

27

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I prohibiting the practice."); Romer, 517 U.S. at 633 (noting that a law cannot broadly disfavor

2 gays and lesbians because of"personal or religious objections to homosexuality." (internal

3 quotation omitted)), Whether premised on pernicious stereotypes or simple moral disapproval,

4 laws classifying on the basis of sexual orientation rest on a "factor [that] generally provides no

5 sensible ground for differential treatment," see Cleburne, 473 U.S. at 441, and thus such laws

6 merit heightened scrutiny.

7

B.

DOMA FAILS HEIGHTENED SCRUTINY.

8

For the reasons described above, heightened scrutiny is the appropriate standard by which

9 to review classifications based on sexual orientation, including DOMA Section 3. 13 In reviewing

10 a legislative classification under heightened scrutiny, the government must establish, at a

II minimum, that the classification is "substantially related to an important government objective."

12 Clark, 586 U.S. at 461. Moreover, under any form of heightened scrutiny, a statute must be

13 defended by reference to the "actual [governmental] purpose" behind it, not a different

14 "rationalization." VMI, 518 U.S. at 535-36.

15

Section 3 fails this analysis. 14 First, the legislative history demonstrates that the statute

16 was motivated in significant part by animus towards gays and lesbians and their intimate and

17 family relationships. 15 Among the interests expressly identified by Congress in enacting DOMA

18
19 13 The government takes no position on whether sexual orientation classifications should be considered suspect, as opposed to quasi-suspect, and therefore whether DOMA should be subject
20 to intermediate or strict scrutiny.
21 14 Though the government believes that heightened scrutiny is the appropriate standard of review 22 for Section 3 of DOMA, if this Comt holds that rational basis is the appropriate standard, as the
government has previously stated, a reasonable argument for the constitutionality of DOMA 23 Section 3 can be made under that permissive standard.

24 15 We note that some members of the majority in Congress that enacted DOMA have changed

25

their views on the law, and the legitimacy of its rationales, since 1996. See, e.g., Bob Barr, No
Defending the Defense ofMarriage Act, L.A. Times (Jan. 5, 2009), available at

26 http://www.latimes.com/news/politics/newsletter/la-oe-barr5-2009jan05,

0,2810 156.story?track=newslettertext. In reviewing the statute under heightened scrutiny, 27

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I was "the government's interest in defending traditional notions of morality." H.R. Rep. No. 104-

2 664, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ("H.R. Rep."). The House Report

3 repeatedly claims that DOMA upholds "traditional notions of morality" by condemning

4 homosexuality and by expressing disapproval of gays and lesbians and their committed

5 relationships. See, e.g., H.R. Rep. at 15-16 ("[J]udgment [opposing same-sex marriage] entails

6 both moral disapproval of homosexuality and a moral conviction that heterosexuality better

7 comports with traditional (especially Judea-Christian) morality."); id. at 16 (stating that same-sex

8 marriage "legitimates a public union, a legal status that most people ... feel ought to be

9 illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is

10 immoral"); id at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a

11 collective moral judgment about human sexuality"); id at 31 (favorably citing the holding in

12 Bowers that an "anti-sodomy law served the rational purpose of expressing the presumed belief.

13 .. that homosexual sodomy is immoral and unacceptable").

14

The House Report also explicitly stated an interest in extending legal preferences to

15 heterosexual couples in various ways to "promote heterosexuality" and discourage

16 homosexuality. H.R. Rep. at 15 n.53 ("Closely related to this interest in protecting traditional

17 marriage is a corresponding interest in promoting heterosexuality. . . . Maintaining a preferred

18 societal status of heterosexual marriage thus will also serve to encourage heterosexuality ....").

19 Thus, one of the goals ofDOMA was to provide gays and lesbians with an incentive to abandon

20 or at least to hide from view a core aspect of their identities, which legislators regarded as

21 immoral and inferior.

22

This record evidences the kind of animus and stereotype-based thinking that the Equal

23 Protection Clause is designed to guard against. Cf Dep 't ofAgriculture v. Moreno, 413 U.S.

24 528, 534 (1973) ("If the constitutional conception of 'equal protection of the laws' means

25

26 however, what is relevant are the views of Congress at the time of enactment, as evidenced by
the legislative record. 27

Defendants' Briefin Opposition to Motions to Dismiss

28 3: /Ocv257-JSW

19

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page27 of 31

1 anything, it must at the very least mean that a bare ... desire to harm a politically unpopular

2 group cannot constitute a legitimate governmental interest."); see also Lawrence, 539 U.S. at 580

3 (O'Connor, J., concurring) ("[The Supreme Court] ha[s] consistently held ... that some

4 objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state

5 interests"). And even if Congress's opposition to gay and lesbian relationships could be

6 understood as reflecting moral or religious objections, that would remain an impermissible basis

7 for sexual-orientation discrimination. See supra at 17-18; Romer, 517 U.S. at 633 (holding that

8 law cannot broadly disfavor gays and lesbians because of"personal or religious objections to

9 homosexuality"). Discouraging homosexuality, in other words, is not a governmental interest

10 that justifies sexual orientation discrimination.

11

Nor is there some other important governmental interest identified by Congress and

12 substantially advanced by Section 3 ofDOMA, as required under heightened scrutiny. In

13 addition to expressing bare hostility to gay and lesbian people and their relationships, in enacting

14 Section 3, the House Report articulated an interest in "defending and nurturing the institution of

15 traditional, heterosexual marriage." H.R. Rep. at 12. That interest does not support Section 3.

16 As an initial matter, reference to tradition, no matter how long established, cannot by itselfjustify

17 a discriminatory law under equal protection principles. VMI, 518 U.S. at 535 (invalidating

18 longstanding tradition of single-sex education at Virginia Military Institute). But even if it were

19 possible to identify a substantive and animus-free interest in protecting "traditional" marriage on

20 this record, there would remain a gap between means and end that would invalidate Section 3

21 under heightened scrutiny. Section 3 ofDOMA has no effect on recognition of the same-sex

22 marriages Congress viewed as threatening to "traditional" marriage; it does not purport to defend

23 "traditional, heterosexual marriage" by preventing same-sex marriage or by denying legal

24 recognition to such marriages. Instead, Section 3 denies benefits to couples who are already

25 legally married in their own states, on the basis of their sexual orientation and not their marital

26 status. Thus, there is not the "substantial relationship" required under heightened scrutiny

27

Defendants' Briefin Opposition to Motions to Dismiss

28 3: /Ocv257-JSW

20

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page28 of 31

I between an end of defending "traditional" marriage and the means employed by Section 3.

2

The same is true of Congress's interest in "promoting responsible procreation and

3 child-rearing," which the House Report identified not as a separate rationale for DOMA Section

4 3, but as the basis for its larger interest in defending "the institution of traditional, heterosexual

5 marriage." See, e.g., H. Rep. at 12-13 ("At bottom, civil society has an interest in maintaining

6 and protecting the institution of heterosexual marriage because it has a deep and abiding interest

7 in encouraging responsible procreation and child-rearing."); id. at 14 ("Were it not for the

8 possibility of begetting children inherent in heterosexual unions, society would have no

9 particular interest in encouraging citizens to come together in a committed relationship.")

I0 (emphasis added). Again, even assuming that Congress legislated on the basis of an independent

II and animus-free interest in promoting responsible procreation and child-rearing, that interest is

12 not materially advanced by Section 3 of DOMA and so cannot justify that provision under

13 heightened scrutiny.

14

First, there is no sound basis for concluding that same-sex couples who have committed

15 to marriages recognized by state law are anything other than fully capable of responsible

16 parenting and child-rearing. To the contrary, many leading medical, psychological, and social

17 welfare organizations have issued policies opposing restrictions on lesbian and gay parenting

18 based on their conclusions, supported by numerous studies, that children raised by gay and

19 lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See,

20 e.g., American Academy of Pediatrics, Coparent or Second-Parent Adoption by 16 Same-Sex

21 Parents (Feb. 2002), available at

22 http://aappolicy.aappublications.org/cgi/content/full/pediatrics; I 09/2/3 39; American

23 Psychological Association, Sexual Orientation, Parents, & Children (July 2004), available at

24 http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of

25 Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy

26 Statement (Oct. 2008), available at

27

Defendants' Briefin Opposition to Motions to Dismiss

28 3: /Ocv257-JSW

21

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page29 of 31

1 http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_parents_

2 policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation,

3 available at http://www.ama-assn.org/ama/ pub/about-ama/our-people/member-groups-

4 sections/glbt-advisorycommittee/arna-policy-regarding-sexual-orientation.shtml; Child Welfare

5 League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual

6 Adults, available at http://www.cwla.org/ prograrns/culture/glbtqposition.htm. For this reason

7 alone, no penalty or prohibition on same-sex marriage can be "substantially" related to an interest

8 in promoting responsible child-rearing.

9

Second, there is no evidence in the legislative record that denying federal benefits to

I 0 same-sex couples legally married under state law operates in any way to encourage responsible

II child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such

12 evidence would look like. In enacting DOMA, Congress expressed the view that marriage plays

13 an "irreplaceable role" in child-rearing. House Report at 14. But Section 3 does nothing to

14 affect the stability of heterosexual marriages or the child-rearing practices of heterosexual

15 married couples. Instead, it denies the children of same-sex couples what Congress sees as the

16 benefits of the stable home life produced by legally recognized marriage, and therefore, on

17 Congress' own account, undermines rather than advances an interest in promoting child welfare.

18

Finally, as to "responsible procreation," even assuming an important governmental

19 interest in providing benefits only to couples who procreate, Section 3 is not sufficiently tailored

20 to that interest to survive heightened scrutiny. Many state-recognized same-sex marriages

21 involve families with children; many opposite-sex maniages do not. And ability to procreate has

22 never been a requirement of marriage or of eligibility for federal marriage benefits; opposite-sex

23 couples who carmot procreate for reasons related to age or other physical characteristics are

24 permitted to marry and to receive federal marriage benefits. Cf H.R. Rep. at 14 (noting "that

25 society permits heterosexual couples to marry regardless of whether they intend or are even able

26

27

Defendants' Briefin Opposition to Motions to Dismiss

28 3: 10cv257-JSW

22

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page30 of 31

I to have children" but describing this objection to DOMA as "not a serious argument"). 16

2

In sum, the official legislative record makes plain that DOMA Section 3 was motivated in

3 substantial part by animus toward gay and lesbian individuals and their intimate relationships,

4 and Congress identified no other interest that is materially advanced by Section 3. Section 3 of

5 DOMA is therefore unconstitutional.

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20
16 The House Report also identifies preservation of scarce government resources as an interest 21 underlying Section 3's denial of government benefits to same-sex couples married under state

22 law. See H.R. Rep. at 18. In fact, many of the rights and obligations affected by Section 3, such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal funds, and

23 in other cases, exclusion of state-recognized same-sex marriages costs the government money by

preserving eligibility for certain federal benefits. But regardless of whether an interest in
24 preserving resources could justifY Section 3 under rational basis review, it is clear that it will not

25 suffice under heightened scrutiny; the government may not single out a suspect class for
exclusion from a benefits program solely in the interest of saving money. See Graham v.

26 Richardson, 403 U.S. 365, 374-75 (1971) (holding that state may not advance its "valid interest

in preserving the fiscal integrity of its programs" through alienage-based exclusions). 27

Defendants' Briefin Opposition to Motions to Dismiss

28 3: !Ocv257-JSW

23

Case3:10-cv-00257-JSW Document145 Filed07/01/11 Page31 of 31

I

CONCLUSION

2

For the reasons set forth above, Section 3 ofDOMA fails heightened scrutiny, and this

3 Court should deny the motions to dismiss Plaintiffs constitutional claim.

4 Dated: July I, 2011

5

Respectfully Submitted,

6

MICHAEL F. HERTZ

Deputy Assistant Attorney General

7

MELINDA HAAG

8

United States Attorney

9

ARTHUR R. GOLDBERG

Assistant Branch Director

10

Is/ Christopher R. Hall

II

CHRISTOPHER R. HALL

D.C. Bar No. 468827

12

Trial Attorney

U.S. Department of Justice

13

Civil Division, Federal Programs Branch

P.O. Box 883

14

Washington, D.C. 20044

(202) 514-4778 (telephone)

15

(202) 616-8470 (fax)

16

Attorneys for Defendants

17

18

19

20

21

22

23

24

25

26

27

Defendants' Briefin Opposition to Motions to Dismiss

28 3:10cv257-JSW

24

 
 Case:C1a2s-1e533:1808-cv-070/22537/2-J0S1W3 DocIuDm: e8n7t12408136FileDd0kt7E/2n9tr/y1:316P2ageP1aogfe4: 1 of 4
FILED

Corrected 7/25/13 FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUL 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN GOLINSKI,

No. 12-15388

Plaintiff - Appellee, v.

D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity,

ORDER

Defendants,

and

BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES,

Intervenor-Defendant Appellant.

KAREN GOLINSKI, Plaintiff - Appellee,
v. UNITED STATES OFFICE OF

No. 12-15409
D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco

Case:C1a2s-1e533:1808-cv-070/22537/2-J0S1W3 DocIuDm: e8n7t12408136FileDd0kt7E/2n9tr/y1:316P2ageP2aogfe4: 2 of 4
PERSONNEL MANAGEMENT and JOHN BERRY, Director of the United States Office of Personnel Management, in his official capacity,
Defendants - Appellants, and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES,
Intervenor-Defendant.
Before: ALARCÓN, THOMAS, and BERZON, Circuit Judges. Karen Golinski, a staff attorney of this Court, is married under California
state law to Amy Cunninghis. After their 2008 marriage, Golinski sought to enroll Cunninghis in her family health insurance plan under the Federal Employees Health Benefits program. The enrollment request was denied on the basis that their same-sex marriage could not be federally recognized under § 3 of the Defense of Marriage Act (“DOMA”).
Golinski first pursued administrative remedies through the Ninth Circuit’s Employment Dispute Resolution Plan (“EDR Plan”), which prohibits discrimination based on sex or sexual orientation. Chief Judge Kozinski, sitting in his administrative capacity, found that Golinski had suffered discrimination under
2

Case:C1a2s-1e533:1808-cv-070/22537/2-J0S1W3 DocIuDm: e8n7t12408136FileDd0kt7E/2n9tr/y1:316P2ageP3aogfe4: 3 of 4
the meaning of the EDR Plan and ordered that her spousal health insurance enrollment be processed. However, the Office of Personnel Management directed Golinski’s health insurance carrier otherwise, advising that processing the enrollment would violate DOMA.
Golinski filed suit, contending that § 3 of DOMA, as applied to her, violated the equal protection and due process components of the Fifth Amendment to the U.S. Constitution. The district court granted Golinski’s motion for summary judgment, holding that § 3 of DOMA “unconstitutionally discriminates against same-sex couples” and therefore “violates [Golinski]’s right to equal protection of the law under the Fifth Amendment.” The district court issued a permanent injunction “enjoining defendants . . . from interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan.”
These consolidated appeals followed. Pursuant to an order issued December 11, 2012, we held the case in abeyance pending the Supreme Court’s resolution of United States v. Windsor, No. 12-307. On June 26, 2013, the Supreme Court issued its opinion in Windsor, holding that § 3 of DOMA “is unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment of the Constitution.” United States v. Windsor, — U.S. —, 133 S. Ct. 2675, 2695 (2013).
3

Case:C1a2s-1e533:1808-cv-070/22537/2-J0S1W3 DocIuDm: e8n7t12408136FileDd0kt7E/2n9tr/y1:316P2ageP4aogfe4: 4 of 4
In light of the Supreme Court’s decision in Windsor, the parties have jointly stipulated that “dismissal is the appropriate disposition of [these] consolidated appeals.”
These consolidated appeals are therefore DISMISSED. The copy of this order shall constitute the mandate of this court.
4

 
 Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 1 of 18
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:10−cv−00257−JSW

Golinski v. United States Office of Personnel Management Assigned to: Hon. Jeffrey S. White Demand: $0 Case in other court: USCA for the Ninth Circuit, 12−15388
USCA for the Ninth Circuit, 12−15409 Cause: 28:1361 Petition for Writ of Mandamus
Plaintiff

Date Filed: 01/20/2010 Date Terminated: 02/22/2012 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Karen Golinski

represented by James R. McGuire Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: jmcguire@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grace Y. Park Bergeson, LLP 2033 Gateway Place Suite 300 San Jose, CA 95110−3715 408−291−6200 Fax: 408−297−6000 Email: gpark@be−law.com TERMINATED: 07/06/2010

Gregory P. Dresser Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: gdresser@mofo.com ATTORNEY TO BE NOTICED

Jennifer Carol Pizer Lambda Legal, Western Regional Office 3325 Wilshire Blvd., Suite 1300 Los Angeles, CA 90010−1729 213−382−7600 Fax: 213−351−6050 Email: jpizer@lambdalegal.org TERMINATED: 03/25/2011 ATTORNEY TO BE NOTICED

Jon Warren Davidson Lambda Legal Defense and Education Fund 3325 Wilshire Boulevard Suite 1300 Los Angeles, CA 90010 (213) 382−7600, ext. 229 Fax: 213−351−6050 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 2 of 18
Rita Lin Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105−2482 415−268−7000 Fax: 415−268−7522 Email: rlin@mofo.com ATTORNEY TO BE NOTICED
Susan Sommer , Lambda Legal 120 Wall Street, 19th Floor New York, NY 10005
212−809−8585 Fax: Email: ssommer@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Tara Lynn Borelli Lambda Legal Defense & Education Fund 3325 Wilshire Blvd #1300 Los Angeles, CA 90010 213−382−7600 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

V. Defendant United States Office of Personnel Management
Defendant

represented by Christopher R Hall U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Room 7128 Washington, DC 20001 202−514−4778 Fax: 202−616−8470 Email: Christopher.Hall@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Yale Bressler U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−0167 Fax: (202) 616−8470 Email: steven.bressler@usdoj.gov TERMINATED: 05/05/2010
Tony West United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−514−4778 Fax: 202−616−8470 ATTORNEY TO BE NOTICED

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 3 of 18

John Berry Director of the United States Office of Personnel Management, in his official capacity

represented by Christopher R Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Yale Bressler (See above for address) TERMINATED: 05/05/2010

Tony West (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bipartisan Legal Advisory Group Bancroft PLLC 1919 M Street, NW Suite 470 Washington, DC 20036 202−234−0090

represented by Paul D. Clement Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: pclement@bancroftpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Conor Brendan Dugan Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: cdugan@bancroftpllc.com ATTORNEY TO BE NOTICED

H. Christopher Bartolomucci Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: cbartolomucci@bancroftpllc.com ATTORNEY TO BE NOTICED

Kerry W. Kircher Office of General Counsel United States House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 Fax: 202−226−1630 Email: kerry.kircher@mail.house.gov ATTORNEY TO BE NOTICED

Date Filed 01/20/2010

# Docket Text
1 COMPLAINT − [Summons Issued] against United States Office of Personnel Management, [Filing Fee: $350.00, Receipt Number 34611041322]. Filed by Plaintiff Karen Golinski. (Attachments: #(1) Civil Cover Sheet). (tn, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 4 of 18

01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/22/2010 01/26/2010 01/26/2010
01/26/2010 01/26/2010 01/26/2010
01/27/2010 01/27/2010
01/27/2010

2 SUMMONS Issued as to Defendant United States Office of Personnel Management.(tn, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
3 ADR SCHEDULING ORDER: Joint Case Management Statement due 4/27/2010 & Initial Case Management Conference set for 5/4/2010 at 10:00 AM. (tn, COURT STAFF) (Filed on 1/20/2010) Modified on 1/21/2010 (jlm, COURT STAFF). (Entered: 01/20/2010)
4 Declination to Proceed Before a United States Magistrate Judge & Request for Reassignment to a United States District Court Judge Filed by Plaintiff Karen Golinski. (tn, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
5 CLERK'S NOTICE of Impending Reassignment to a United States District Court Judge. (tn, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
6 REASSIGNMENT ORDER. Case Reassigned to the Honorable Saundra Brown Armstrong for all further proceedings. Mag. Judge Elizabeth D. Laporte no longer assigned to the case. (tn, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 01/20/2010)
***Deadlines terminated. (jlm, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/21/2010)
7 NOTICE of Appearance of Attorney Steven Yale Bressler, filed by United States Office of Personnel Managment (Bressler, Steven) (Filed on 1/22/2010) Modified on 1/25/2010 (jlm, COURT STAFF). (Entered: 01/22/2010)
8 MOTION for Preliminary Injunction, filed by Karen Golinski. Motion Hearing set for 6/15/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (Entered: 01/26/2010)
9 Declaration of Karen Golinski in Support of 8 Motion for Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 8 ) (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (Entered: 01/26/2010)
10 Declaration of James R. McGuire in Support of 8 Motion for Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit I, # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit L)(Related document(s) 8 ) (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (Entered: 01/26/2010)
11 Request for Judicial Notice re 8 Motion for Preliminary Injunction filed by Karen Golinski. (Related document(s) 8 ) (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (Entered: 01/26/2010)
12 CERTIFICATE OF SERVICE by Karen Golinski re 8 Motion for Preliminary Injunction 9 Declaration of Karen Golinski in Support 10 Declaration of James R. McGuire in Support 11 Request for Judicial Notice (Related document(s) 8 , 9 , 10 , 11 ) (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (McGuire, James) (Filed on 1/26/2010) Modified on 1/27/2010 (jlm, COURT STAFF). (Entered: 01/26/2010)
13 Ex Parte MOTION for Order Shortening Time re 8 Motion for Preliminary Injunction filed by Karen Golinski. Motion Hearing set for 6/15/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(McGuire, James) (Filed on 1/27/2010) Modified on 1/28/2010 (jlm, COURT STAFF). (Entered: 01/27/2010)
14 Declaration of James R. McGuire in Support of 13 Ex Parte Motion for Order Shortening Time re Motion for Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 13 ) (McGuire, James) (Filed on 1/27/2010) Modified on 1/28/2010 (jlm, COURT STAFF). (Entered: 01/27/2010)
15 CERTIFICATE OF SERVICE by Karen Golinski re 14 Declaration James R. McGuire in Support, 13 Ex Parte Motion for Order Shortening Time on Hearing re

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 5 of 18

01/28/2010 02/02/2010 02/02/2010 02/02/2010 02/03/2010 02/03/2010 02/11/2010
03/01/2010 03/01/2010 03/02/2010 03/02/2010 03/02/2010
03/02/2010 03/03/2010

Motion for Preliminary Injunction (McGuire, James) (Filed on 1/27/2010) Modified on 1/28/2010 (jlm, COURT STAFF). Modified on 3/9/2010 (jlm, COURT STAFF). (Entered: 01/27/2010)
16 CLERKS NOTICE Case Management Conference set for 4/28/2010 02:45 PM. VIA TELEPHONE. (lrc, COURT STAFF) (Filed on 1/28/2010) (Entered: 01/28/2010)
17 Memorandum in Opposition re 13 Ex Parte Motion for Order Shortening Time on Motion for Preliminary Injunction filed by United States Office of Personnel Management. (Bressler, Steven) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
18 Declaration of Steven Y. Bressler in Support of 17 Memorandum in Opposition, filed by United States Office of Personnel Management. (Related document(s) 17 ) (Bressler, Steven) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
19 Proposed Order re 13 Ex Parte Motion for Order Shortening Time re Motion for Preliminary Injunction filed, by United States Office of Personnel Management. (Bressler, Steven) (Filed on 2/2/2010) Modified on 2/3/2010 (jlm, COURT STAFF). (Entered: 02/02/2010)
20 Reply to Opposition re 13 Ex Parte Motion for Order Shortening Time for Notice and Hearing as to Motion for Preliminary Injunction filed by Karen Golinski. (McGuire, James) (Filed on 2/3/2010) Modified on 2/4/2010 (jlm, COURT STAFF). (Entered: 02/03/2010)
21 CERTIFICATE OF SERVICE by Karen Golinski re 20 Reply to Opposition, (McGuire, James) (Filed on 2/3/2010) Modified on 2/4/2010 (jlm, COURT STAFF). (Entered: 02/03/2010)
22 ORDER by Judge Saundra Brown Armstrong DENYING 13 Ex Parte Motion to Shorten Time for Notice and Hearing for Preliminary Injunction. Defendant is to respond to Plaintiff's Motion for Preliminary Injuncition on or before 03/09/10; Plaintiff may file reply by 03/09/10. (lrc, COURT STAFF) (Filed on 2/11/2010) Modified on 2/12/2010 (jlm, COURT STAFF). (Entered: 02/11/2010)
23 MOTION for Leave to File Opposition Brief of 36 Pages, filed by United States Office of Personnel Management. (Attachments: # 1 Proposed Order)(Bressler, Steven) (Filed on 3/1/2010) Modified on 3/2/2010 (jlm, COURT STAFF). (Entered: 03/01/2010)
24 Declaration of Steven Y. Bressler in Support of 23 Motion for Leave to File Opposition Brief of 36 Pages filed by United States Office of Personnel Management. (Related document(s) 23 ) (Bressler, Steven) (Filed on 3/1/2010) Modified on 3/2/2010 (jlm, COURT STAFF). (Entered: 03/01/2010)
25 Memorandum in Opposition re 8 Motion for Preliminary Injunction filed by United States Office of Personnel Management. (Bressler, Steven) (Filed on 3/2/2010) Modified on 3/3/2010 (jlm, COURT STAFF). (Entered: 03/02/2010)
26 Memorandum in Opposition re 23 Motion for Leave to File Opposition Brief of 36 Pages filed by Karen Golinski. (McGuire, James) (Filed on 3/2/2010) Modified on 3/3/2010 (jlm, COURT STAFF). (Entered: 03/02/2010)
27 Declaration of James R. McGuire in Support of 26 Memorandum in Opposition to Defendants Administrative Motion for Leave to File an Opposition Brief of 36 Pages filed by Karen Golinski. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 26 ) (McGuire, James) (Filed on 3/2/2010) Modified on 3/3/2010 (jlm, COURT STAFF). (Entered: 03/02/2010)
28 Proposed Order re 23 Motion for Leave to File Opposition Brief of 36 Pages by Karen Golinski. (McGuire, James) (Filed on 3/2/2010) Modified on 3/3/2010 (jlm, COURT STAFF). (Entered: 03/02/2010)
29 Reply Brief in support of 23 MOTION for Leave to File Opposition Brief of 36 Pages filed byUnited States Office of Personnel Management. (Bressler, Steven) (Filed on 3/3/2010) Modified on 3/4/2010 (kc, COURT STAFF). (Entered: 03/03/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 6 of 18

03/08/2010 03/09/2010 03/09/2010

30 AMENDED COMPLAINT against United States Office of Personnel Management, John Berry. Filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(McGuire, James) (Filed on 3/8/2010) Modified on 3/9/2010 (jlm, COURT STAFF). (Entered: 03/08/2010)
31 ORDER by Judge Saundra Brown Armstrong DENYING 23 Motion for Leave to File Excess Pages to Opposition Brief. Defendant shall file a response to Plaintiff's Motion for Preliminary Injunction by 03/12/10. Plaintiff may file reply by 03/19/10. Defendant's 25 Opposition to Motion for Preliminary Injunction is STRICKEN from the record. (lrc, COURT STAFF) (Filed on 3/9/2010) Modified on 3/10/2010 (jlm, COURT STAFF). (Entered: 03/09/2010)
32 ***ERRONEOUS ENTRY, PLEASE REFER TO DOCUMENT 35 ***

03/09/2010 03/10/2010
03/10/2010 03/10/2010 03/12/2010 03/18/2010
03/19/2010 03/19/2010
03/19/2010
04/07/2010 04/07/2010 04/09/2010

CERTIFICATE OF SERVICE by Karen Golinski re 30 Amended Complaint (McGuire, James) (Filed on 3/9/2010) Modified on 3/10/2010 (jlm, COURT STAFF). Modified on 3/10/2010 (jlm, COURT STAFF). Modified on 3/15/2010 (jlm, COURT STAFF). (Entered: 03/09/2010)
33 Summons Issued as to John Berry. (jlm, COURT STAFF) (Filed on 3/9/2010) (Entered: 03/10/2010)
34 Amended MOTION for Preliminary Injunction, filed by Karen Golinski. Motion Hearing set for 6/15/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(McGuire, James) (Filed on 3/10/2010) Modified on 3/11/2010 (jlm, COURT STAFF). (Entered: 03/10/2010)
35 CERTIFICATE OF SERVICE by Karen Golinski re 30 Amended Complaint, (McGuire, James) (Filed on 3/10/2010) (Entered: 03/10/2010)
36 CERTIFICATE OF SERVICE by Karen Golinski re 34 Amended Motion for Preliminary Injunction (McGuire, James) (Filed on 3/10/2010) Modified on 3/11/2010 (jlm, COURT STAFF). (Entered: 03/10/2010)
37 Memorandum in Opposition re 34 Amended MOTION for Preliminary Injunction, 8 MOTION for Preliminary Injunction filed byJohn Berry, United States Office of Personnel Management. (Bressler, Steven) (Filed on 3/12/2010) (Entered: 03/12/2010)
38 STIPULATION Extending Time for Defendant OPM to Respond to 30 Amended Complaint filed by John Berry, United States Office of Personnel Management. (Bressler, Steven) (Filed on 3/18/2010) Modified on 3/19/2010 (jlm, COURT STAFF). (Entered: 03/18/2010)
39 Reply Memorandum re 34 Amended Motion for Preliminary Injunction filed by Karen Golinski. (McGuire, James) (Filed on 3/19/2010) Modified on 3/22/2010 (jlm, COURT STAFF). (Entered: 03/19/2010)
40 Request for Judicial Notice re 39 Reply Memorandum filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 39 ) (McGuire, James) (Filed on 3/19/2010) Modified on 3/22/2010 (jlm, COURT STAFF). (Entered: 03/19/2010)
41 Declaration of James R. McGuire in Support of 39 Reply Memorandum filed by Karen Golinski. (Attachments: # 1 Exhibit E, # 2 Exhibit F, # 3 Exhibit G, # 4 Exhibit H)(Related document(s) 39 ) (McGuire, James) (Filed on 3/19/2010) Modified on 3/22/2010 (jlm, COURT STAFF). (Entered: 03/19/2010)
42 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Karen Golinski (Lin, Rita) (Filed on 4/7/2010) Modified on 4/8/2010 (jlm, COURT STAFF). (Entered: 04/07/2010)
43 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d), filed by Karen Golinski (Lin, Rita) (Filed on 4/7/2010) Modified on 4/8/2010 (jlm, COURT STAFF). (Entered: 04/07/2010)
44 ***ERRONEOUS ENTRY, PLEASE REFER TO DOCUMENT 45 ***

Certificate of Interested Entities by Karen Golinski (Lin, Rita) (Filed on 4/9/2010) Modified on 4/13/2010 (jlm, COURT STAFF). (Entered: 04/09/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 7 of 18

04/12/2010 04/13/2010 04/15/2010 05/05/2010 05/10/2010
05/14/2010 06/04/2010 06/15/2010 07/06/2010 07/09/2010 07/09/2010 07/12/2010 07/12/2010 07/23/2010
07/23/2010 07/26/2010

45 Certificate of Interested Entities by Karen Golinski identifying Other Affiliate Amy Cunninghis for Karen Golinski. (Lin, Rita) (Filed on 4/12/2010) (Entered: 04/12/2010)
46 ADR Clerks Notice Setting ADR Phone Conference on 4/26/10 at 2:30 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (sgd, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)
47 CLERKS NOTICE Case Management Conference set for 6/15/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (lrc, COURT STAFF) (Filed on 4/15/2010) (Entered: 04/15/2010)
48 NOTICE of Substitution of Counsel and Appearance for Christopher R Hall, filed by John Berry, United States Office of Personnel Management (Hall, Christopher) (Filed on 5/5/2010) Modified on 5/6/2010 (jlm, COURT STAFF). (Entered: 05/05/2010)
49 MOTION to Dismiss with Memorandum in Support, filed by John Berry, United States Office of Personnel Management. Motion Hearing set for 9/14/2010 01:00 PM in Courtroom 1, 4th Floor, Oakland. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Hall, Christopher) (Filed on 5/10/2010) Modified on 5/11/2010 (jlm, COURT STAFF). (Entered: 05/10/2010)
ADR Remark: ADR Phone Conference held by HAH on 4/26/10. (sgd, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
50 JOINT CASE MANAGEMENT STATEMENT filed by Karen Golinski, John Berry, United States Office of Personnel Management. (Lin, Rita) (Filed on 6/4/2010) Modified on 6/8/2010 (jlm, COURT STAFF). (Entered: 06/04/2010)
***Deadlines terminated re Motion Hearing & Case Management Conference as to 34 Amended Motion for Preliminary Injunction, 8 Motion for Preliminary Injunction, 47 Clerks Notice. (jlm, COURT STAFF) (Filed on 6/15/2010) (Entered: 07/07/2010)
51 NOTICE of Withdrawal of Grace Y. Park as Counsel, filed by Karen Golinski (Park, Grace) (Filed on 7/6/2010) Modified on 7/7/2010 (jlm, COURT STAFF). (Entered: 07/06/2010)
52 Administrative Motion to File Under Seal Supplemental Declaration In Support Of Motion For Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Proposed Order)(Lin, Rita) (Filed on 7/9/2010) (Entered: 07/09/2010)
53 Declaration of Rita F. Lin in Support of 52 Administrative Motion to File Under Seal Supplemental Declaration In Support Of Motion For Preliminary Injunction filed byKaren Golinski. (Related document(s) 52 ) (Lin, Rita) (Filed on 7/9/2010) (Entered: 07/09/2010)
54 EXHIBITS re 52 Administrative Motion to File Under Seal Supplemental Declaration In Support Of Motion For Preliminary Injunction filed byKaren Golinski. (Related document(s) 52 ) (Lin, Rita) (Filed on 7/12/2010) (Entered: 07/12/2010)
55 NOTICE by John Berry, United States Office of Personnel Management re 53 Declaration in Support Defendants' Certification of Position under Paragraph 5 of the Standing Order of This Court in Response to Declaration of Rita F. Lin (Hall, Christopher) (Filed on 7/12/2010) (Entered: 07/12/2010)
56 ORDER by Judge Saundra Brown Armstrong GRANTING 52 Administrative Motion to File Under Seal Plaintiff's Supplemental Declaration in Support of Motion for Preliminary Injunction. Signed by Judge Saundra Brown Armstrong, on 07/22/10 (lrc, COURT STAFF) (Filed on 7/23/2010) Modified on 7/26/2010 (jlm, COURT STAFF). (Entered: 07/23/2010)
57 DOCUMENT E−FILED UNDER SEAL re 56 Order on Administrative Motion to File Under Seal Supplemental Declaration Of Plaintiff Karen Golinski In Support Of Motion For Preliminary Injunction by Karen Golinski. (Lin, Rita) (Filed on 7/23/2010) (Entered: 07/23/2010)
58 Statement of Recent Decision re 8 Motion for Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit A)(Lin, Rita) (Filed on 7/26/2010) Modified on 7/27/2010 (jlm, COURT STAFF). (Entered: 07/26/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 8 of 18

08/03/2010 08/16/2010 08/24/2010 08/25/2010 09/20/2010 09/20/2010 09/22/2010 09/22/2010 09/22/2010 09/22/2010 09/23/2010 09/28/2010 09/28/2010 09/28/2010 09/29/2010 09/29/2010

59 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d In Support Of Her Motion For Preliminary Injunction filed byKaren Golinski. (Attachments: # 1 Exhibit A)(Related document(s) 8 ) (Lin, Rita) (Filed on 8/3/2010) (Entered: 08/03/2010)
60 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d In Support Of 8 Motion For Preliminary Injunction filed by Karen Golinski. (Attachments: # 1 Exhibit A)(Related document(s) 8 ) (Lin, Rita) (Filed on 8/16/2010) Modified on 8/17/2010 (kc, COURT STAFF). (Entered: 08/16/2010)
61 MEMORANDUM in Opposition re 49 Motion to Dismiss Amended Complaint filed by Karen Golinski. (Lin, Rita) (Filed on 8/24/2010) Modified on 8/25/2010 (jlm, COURT STAFF). (Entered: 08/24/2010)
62 CLERKS NOTICE Continuing Motion Hearing to 10/26/2010 at 01:00 PM in Courtroom 1, 4th Floor, Oakland. (lrc, COURT STAFF) (Filed on 8/25/2010) Modified on 8/26/2010 (jlm, COURT STAFF). (Entered: 08/25/2010)
63 ORDER by Chief Judge Vaughn R. Walker on 9/20/10 that due to the unavailability of Judge Saundra Brown Armstrong, the Executive Committee directs the clerk to re−assign this action. (gba, COURT STAFF) (Filed on 9/20/2010) (Entered: 09/20/2010)
64 ORDER REASSIGNING CASE. Case reassigned to Hon. Susan Illston for all further proceedings. Hon. Saundra Brown Armstrong no longer assigned to the case. Signed by Executive Committee on 9/20/10. (ha, COURT STAFF) (Filed on 9/20/2010) (Entered: 09/20/2010)
65 ERRONEOUSLY E−FILED NOTICE by Karen Golinski Of Motion For Preliminary Injunction (Lin, Rita) (Filed on 9/22/2010) Modified on 9/23/2010 (aaa, COURT STAFF). (Entered: 09/22/2010)
66 ORDER OF RECUSAL (tf, COURT STAFF) (Filed on 9/22/2010) (Entered: 09/22/2010)
67 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Charles R. Breyer for all further proceedings. Judge Hon. Susan Illston no longer assigned to the case. Signed by Executive Committee on 9/22/10. (mab, COURT STAFF) (Filed on 9/22/2010) (Entered: 09/22/2010)
68 ERRONEOUSLY E−FILED: COUNSEL TO E−FILE ATTACHMENT AS A MOTION NOTICE by Karen Golinski Amended Notice Of Motion For Preliminary Injunction (McGuire, James) (Filed on 9/22/2010) Modified on 9/23/2010 (aaa, COURT STAFF). (Entered: 09/22/2010)
69 MOTION for Preliminary Injunction Notice of Motion filed by Karen Golinski. Motion Hearing set for 10/29/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (McGuire, James) (Filed on 9/23/2010) (Entered: 09/23/2010)
70 NOTICE by Karen Golinski That Matter Remains Under Submission (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lin, Rita) (Filed on 9/28/2010) (Entered: 09/28/2010)
71 ORDER OF RECUSAL. Signed by Judge Charles R. Breyer on 9/28/2010. (crblc1, COURT STAFF) (Filed on 9/28/2010) (Entered: 09/28/2010)
72 ORDER REASSIGNING CASE. Case reassigned to Hon. Jeffrey S. White for all further proceedings. Hon. Charles R. Breyer no longer assigned to the case. Signed by Executive Committee on 9/28/10. (ha, COURT STAFF) (Filed on 9/28/2010) (Entered: 09/28/2010)
73 ORDER re 70 Notice of Matter Under Submission, Setting Hearing and Briefing Schedule on Pending Motions. Signed by Judge Jeffrey S. White on September 29, 2010. (jswlc2, COURT STAFF) (Filed on 9/29/2010) (Entered: 09/29/2010)
Set Hearing as to 49 MOTION to Dismiss and 69 MOTION for Preliminary Injunction. Motion Hearing set for 11/5/2010 09:00 AM. (hdj, COURT STAFF) (Filed on 9/29/2010) (Entered: 09/29/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 9 of 18

10/04/2010 10/06/2010 10/15/2010 10/15/2010 10/15/2010 10/18/2010 10/21/2010 10/22/2010
11/08/2010 11/08/2010 11/19/2010 11/29/2010 12/10/2010 12/16/2010 12/17/2010 12/17/2010

74 INITIAL SCHEDULING CONFERENCE ORDER: Case Management Conference set for 12/17/2010 01:30 PM in Courtroom 11, 19th Floor, San Francisco. Case Management Statement due by 12/10/2010.. Signed by Judge Jeffrey S. White on 10/4/10. (jjoS, COURT STAFF) (Filed on 10/4/2010) (Entered: 10/04/2010)
75 REPLY to Response to Motion 49 to Dismiss Plaintiff's First Amended Complaint filed byJohn Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 10/6/2010) Modified on 10/7/2010 (hdj, COURT STAFF). (Entered: 10/06/2010)
76 ORDER Requiring Further Briefing and Continuing Hearing on Pending Motions. Signed by Judge Jeffrey S. White on October 15, 2010. (jswlc2, COURT STAFF) (Filed on 10/15/2010) (Entered: 10/15/2010)
Set/Reset Hearing as to 49 MOTION to Dismiss, 69 MOTION for Preliminary Injunction. Motion Hearing set for 12/3/2010 10:00 AM. (hdj, COURT STAFF) (Filed on 10/15/2010) (Entered: 10/15/2010)
77 NOTICE by Karen Golinski Request For Alteration Of Briefing Schedule And Hearing Date (McGuire, James) (Filed on 10/15/2010) (Entered: 10/15/2010)
78 Proposed Order re 77 Notice (Other) For Alteration Of Briefing Schedule And Hearing Date by Karen Golinski. (McGuire, James) (Filed on 10/18/2010) (Entered: 10/18/2010)
79 Statement re 78 Proposed Order, 77 Notice (Other) Statement of Nonopposition to Plaintiff's Request for Alteration of Briefing Schedule and Hearing Date by John Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 10/21/2010) (Entered: 10/21/2010)
80 ORDER GRANTING REQUEST FOR ALTERATION OF BRIEFING SCHEDULE AND HEARING DATE AND SETTING CASE MANAGEMENT TO FOLLOWING HEARING : Motion Hearing set for 12/17/2010 10:00 AM in Courtroom 11, 19th Floor, San Francisco. Case Management Statement due by 12/10/2010. Initial Case Management Conference set for 12/17/2010 10:00 AM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge JEFFREY S. WHITE on 10/22/10. (jjoS, COURT STAFF) (Filed on 10/22/2010) (Entered: 10/22/2010)
81 Brief re 76 Order Supplemental Brief Pursuant To October 15 Order filed byKaren Golinski. (Related document(s) 76 ) (Lin, Rita) (Filed on 11/8/2010) (Entered: 11/08/2010)
82 Request for Judicial Notice re 81 Brief In Support Of Plaintiff Karen Golinski's Supplemental Brief Pursuant To October 15 Order filed byKaren Golinski. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 81 ) (Lin, Rita) (Filed on 11/8/2010) (Entered: 11/08/2010)
83 Brief re 76 Order Defendants' Supplemental Brief in Response to Court's Order of October 15, 2010 filed byJohn Berry, United States Office of Personnel Management. (Related document(s) 76 ) (Hall, Christopher) (Filed on 11/19/2010) (Entered: 11/19/2010)
84 Brief re 81 Brief Reply In Support Of Supplemental Brief Pursuant To The October 15 Order filed byKaren Golinski. (Related document(s) 81 ) (Lin, Rita) (Filed on 11/29/2010) (Entered: 11/29/2010)
85 JOINT CASE MANAGEMENT STATEMENT filed by Karen Golinski. (Lin, Rita) (Filed on 12/10/2010) (Entered: 12/10/2010)
86 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 16, 2010. (jswlc2, COURT STAFF) (Filed on 12/16/2010) (Entered: 12/16/2010)
87 Minute Entry: Motion Hearing held on 12/17/2010 before Judge Jeffrey S. White (Date Filed: 12/17/2010). (Court Reporter Lydia Zinn.) (jjoS, COURT STAFF) (Date Filed: 12/17/2010) (Entered: 12/17/2010)
88 NOTICE by Karen Golinski re 86 Order Of Further Authority Pursuant To December 16 Order (Lin, Rita) (Filed on 12/17/2010) (Entered: 12/17/2010)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 10 of 18

12/17/2010 12/30/2010
01/25/2011 01/25/2011 01/25/2011 02/23/2011
02/23/2011 02/23/2011 02/28/2011 03/03/2011 03/16/2011 03/21/2011 03/25/2011 03/25/2011 04/14/2011
05/04/2011
05/04/2011

***CMC Deadlines terminated 87 Motion Hearing held. (hdj, COURT STAFF) (Filed on 12/17/2010) (Entered: 12/20/2010)
89 Transcript of Proceedings held on 12/17/2010, before Judge Jeffrey S. White. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/30/2011. (Zinn, Lydia) (Filed on 12/30/2010) (Entered: 12/30/2010)
90 MOTION for Leave to File Notice Of Supplemental Authority Pursuant To Local Rule 7−3(d) filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Lin, Rita) (Filed on 1/25/2011) (Entered: 01/25/2011)
91 ORDER by Judge Jeffrey S. White granting 90 Motion for Leave to File Notice of Supplemental Authority (jjoS, COURT STAFF) (Filed on 1/25/2011) (Entered: 01/25/2011)
92 NOTICE of Supplemental Authority filed by Karen Golinski per Order 91 (hdj, COURT STAFF) (Filed on 1/25/2011) (Entered: 01/26/2011)
93 MOTION for Leave to File Plaintiff's Administrative Motion for Leave to File Notice of Supplemental Authority Pursuant to Local Rule 7−3(D) filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Dresser, Gregory) (Filed on 2/23/2011) (Entered: 02/23/2011)
94 ORDER to Show Cause. Signed by Judge Jeffrey S. White on February 23, 2011. (jswlc2, COURT STAFF) (Filed on 2/23/2011) (Entered: 02/23/2011)
95 ORDER by Judge Jeffrey S. White GRANTING 93 Motion for Leave to File Notice of Supplemental Authority. (jswlc2, COURT STAFF) (Filed on 2/23/2011) (Entered: 02/23/2011)
96 RESPONSE TO 94 ORDER TO SHOW CAUSE by John Berry, United States Office of Personnel Management. (Attachments: # 1 Exhibit 1)(Hall, Christopher) (Filed on 2/28/2011) Modified on 3/1/2011 (mjj2, COURT STAFF). (Entered: 02/28/2011)
97 Response re 96 Response to Order to Show Cause To February 23, 2011 Order byKaren Golinski. (Lin, Rita) (Filed on 3/3/2011) (Entered: 03/03/2011)
98 ORDER by Judge Jeffrey S. White GRANTING 49 Motion to Dismiss with Leave to Amend and DENYING 69 Motion for Preliminary Injunction. (jswlc2, COURT STAFF) (Filed on 3/16/2011) (Entered: 03/16/2011)
99 NOTICE of Appearance by Tara Lynn Borelli (Borelli, Tara) (Filed on 3/21/2011) (Entered: 03/21/2011)
100 NOTICE of Appearance by Jon Warren Davidson (Davidson, Jon) (Filed on 3/25/2011) (Entered: 03/25/2011)
101 NOTICE by Karen Golinski Notice of Withdrawal of Counsel (Pizer, Jennifer) (Filed on 3/25/2011) (Entered: 03/25/2011)
102 AMENDED COMPLAINT Second Amended Complaint against John Berry, United States Office of Personnel Management. Filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(McGuire, James) (Filed on 4/14/2011) (Entered: 04/14/2011)
103 MOTION to Intervene filed by Bipartisan Legal Advisory Group. Motion Hearing set for 6/17/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Filed on 5/4/2011) (Entered: 05/04/2011)
104 MOTION for Extension of Time to File Response/Reply as to 102 Amended Complaint, filed by John Berry, United States Office of Personnel Management. (Attachments: # 1 Affidavit Attachment A, # 2 Affidavit Attachment B, # 3 Proposed

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 11 of 18

05/09/2011 05/09/2011 05/09/2011
05/09/2011 05/10/2011 05/23/2011 05/24/2011 05/24/2011 05/25/2011 06/02/2011 06/03/2011 06/03/2011 06/03/2011
06/03/2011
06/03/2011

Order)(Hall, Christopher) (Filed on 5/4/2011) (Entered: 05/04/2011)
105 RESPONSE (re 104 MOTION for Extension of Time to File Response/Reply as to 102 Amended Complaint, MOTION for Extension of Time to File Response/Reply as to 102 Amended Complaint, ) filed byKaren Golinski. (McGuire, James) (Filed on 5/9/2011) (Entered: 05/09/2011)
106 Declaration of Rita F. Lin in Support of 105 Opposition/Response to Motion To Enlarge Time to Respond To Plaintiff's Second Amended Complaint filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 105 ) (McGuire, James) (Filed on 5/9/2011) (Entered: 05/09/2011)
107 Declaration of James R. McGuire in Support of 105 Opposition/Response to Motion To Enlarge Time To Respond To Plaintiff''s Second Amended Complaint filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 105 ) (McGuire, James) (Filed on 5/9/2011) (Entered: 05/09/2011)
108 Statement of Non−Opposition re 103 MOTION to Intervene filed byKaren Golinski. (Attachments: # 1 Exhibit A)(Related document(s) 103 ) (McGuire, James) (Filed on 5/9/2011) (Entered: 05/09/2011)
109 ORDER GRANTING 104 MOTION for Extension of Time to File Response/Reply. Signed by Judge Jeffrey S. Whtie on 5/10/11. (jjoS, COURT STAFF) (Filed on 5/10/2011) (Entered: 05/10/2011)
110 ORDER RE REPLY BRIEF ON BLAG'S MOTION TO INTERVENE. Signed by Judge JEFFREY S. WHITE on 5/23/11. (jjoS, COURT STAFF) (Filed on 5/23/2011) (Entered: 05/23/2011)
111 REPLY (re 103 MOTION to Intervene ) filed byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 5/24/2011) (Entered: 05/24/2011)
112 RESPONSE (re 103 MOTION to Intervene ) filed byJohn Berry, United States Office of Personnel Management. (Attachments: # 1 Proposed Order)(Hall, Christopher) (Filed on 5/24/2011) (Entered: 05/24/2011)
113 REPLY (re 103 MOTION to Intervene ) filed byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 5/25/2011) (Entered: 05/25/2011)
114 MOTION for Leave to File Excess Pages in Brief in Support of Motion to Dismiss filed by Bipartisan Legal Advisory Group. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Filed on 6/2/2011) (Entered: 06/02/2011)
115 ORDER by Judge Jeffrey S. White GRANTING 114 Stipulated Motion for Leave to File Excess Pages. (jswlc2, COURT STAFF) (Filed on 6/3/2011) (Entered: 06/03/2011)
116 ORDER by Judge Jeffrey S. White GRANTING 103 Motion to Intervene. (jswlc2, COURT STAFF) (Filed on 6/3/2011) (Entered: 06/03/2011)
117 ERRONEOUS DOCUMENT. SEE 118 CORRECTED MOTION MOTION to Dismiss Plaintiff's Second Amended Complaint filed by John Berry, United States Office of Personnel Management. Motion Hearing set for 7/29/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Hall, Christopher) (Filed on 6/3/2011) Modified on 6/6/2011 (mjj2, COURT STAFF). (Entered: 06/03/2011)
118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, filed by John Berry, United States Office of Personnel Management. Motion Hearing set for 7/29/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (Attachments: # 1 Supporting Memorandum, # 2 Proposed Order)(Hall, Christopher) (Filed on 6/3/2011) (Entered: 06/03/2011)
119 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Bipartisan Legal Advisory Group. Motion Hearing set for 8/5/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Proposed Order)(Kircher,

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 12 of 18

06/08/2011 06/08/2011 06/08/2011 06/09/2011 06/09/2011 06/09/2011 06/10/2011
06/13/2011 06/15/2011 06/16/2011 06/16/2011 06/20/2011 06/22/2011
06/24/2011 06/24/2011

Kerry) (Filed on 6/3/2011) (Entered: 06/03/2011)
120 ERRATA re 119 MOTION to Dismiss Plaintiff's Second Amended Complaint by Bipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 6/8/2011) (Entered: 06/08/2011)
121 MOTION Regarding Oppositions To Motions To Dismiss And Anticipated Motion For Summary Judgment filed by Karen Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Lin, Rita) (Filed on 6/8/2011) (Entered: 06/08/2011)
122 Declaration of Rita F. Lin in Support of 121 MOTION Regarding Oppositions To Motions To Dismiss And Anticipated Motion For Summary Judgment filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 121 ) (Lin, Rita) (Filed on 6/8/2011) (Entered: 06/08/2011)
123 NOTICE of Appearance by Conor Brendan Dugan (Dugan, Conor) (Filed on 6/9/2011) (Entered: 06/09/2011)
124 NOTICE of Appearance by H. Christopher Bartolomucci (Bartolomucci, H. Christopher) (Filed on 6/9/2011) (Entered: 06/09/2011)
125 NOTICE of Appearance by Paul D. Clement , Lead Counsel (Clement, Paul) (Filed on 6/9/2011) (Entered: 06/09/2011)
126 Statement of Non−Opposition re 121 MOTION Regarding Oppositions To Motions To Dismiss And Anticipated Motion For Summary Judgment Statement of Partial Non−Opposition filed byJohn Berry, United States Office of Personnel Management. (Related document(s) 121 ) (Hall, Christopher) (Filed on 6/10/2011) (Entered: 06/10/2011)
127 RESPONSE (re 121 MOTION Regarding Oppositions To Motions To Dismiss And Anticipated Motion For Summary Judgment ) filed byBipartisan Legal Advisory Group. (Attachments: # 1 Proposed Order)(Dugan, Conor) (Filed on 6/13/2011) (Entered: 06/13/2011)
128 ORDER by Judge Jeffrey S. White granting in part and denying in part 121 Administrative Motion. (jswlc2, COURT STAFF) (Filed on 6/15/2011) (Entered: 06/15/2011)
129 MOTION for leave to appear in Pro Hac Vice −Susan L. Sommer ( Filing fee $ 275, receipt number 34611061114.) filed by Karen Golinski. (hdj, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/17/2011)
130 Proposed Order re 129 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 275, receipt number 34611061114.) by Karen Golinski. (hdj, COURT STAFF) (Filed on 6/16/2011) (Entered: 06/17/2011)
131 ORDER by Judge JEFFREY S. WHITE granting 129 Motion for Pro Hac Vice for Susan L. Sommer (jjoS, COURT STAFF) (Filed on 6/20/2011) (Entered: 06/20/2011)
132 MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative Motion to Enlarge Period to File a Brief in Response to Motions to Dismiss and to Exceed Page Limitations filed by John Berry, United States Office of Personnel Management. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Hall, Christopher) (Filed on 6/22/2011) (Entered: 06/22/2011)
133 RESPONSE (re 119 MOTION to Dismiss Plaintiff's Second Amended Complaint ) Plaintiff's Memorandum Of Points And Authorities In Opposition To Defendants' And Bipartisan Legal Advisory Group's Motion To Dismiss filed byKaren Golinski. (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)
134 Declaration of George Chauncey in Support of 133 Opposition/Response to Motion, To Defendants' and Bipartisan Legal Advisory Group's Motions To Dismiss filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 13 of 18

06/24/2011 06/24/2011 06/24/2011 06/24/2011 06/27/2011
06/28/2011
06/28/2011 06/28/2011 07/01/2011 07/01/2011

135 Declaration of Nancy F. Cott in Support of 133 Opposition/Response to Motion, To Defendants' And Bipartisan Legal Advisory Group's Motions to Dismiss filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)
136 Declaration of Michael Lamb in Support of 133 Opposition/Response to Motion, To Defendants' And Bipartisan Legal Advisory Group's Motions to Dismiss filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)
137 Declaration of Letitia Anne Peplau in Support of 133 Opposition/Response to Motion, To Defendants' And Bipartisan Legal Advisory Group's Motions To Dismiss filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)
138 Declaration of Gary Segura in Support of 133 Opposition/Response to Motion, To Defendants' And Bipartisan Legal Advisory Group's Motions To Dismiss filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Lin, Rita) (Filed on 6/24/2011) (Entered: 06/24/2011)
139 RESPONSE (re 132 MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative ) filed byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Dugan, Conor) (Filed on 6/27/2011) (Entered: 06/27/2011)
140 REPLY (re 132 MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Defendants' Administrative ) filed byKaren Golinski. (Lin, Rita) (Filed on 6/28/2011) (Entered: 06/28/2011)
141 ORDER by Judge Jeffrey S. White granting 132 Motion for Extension of Time to File Response/Reply re 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, Responses due by 7/15/2011. (jjoS, COURT STAFF) (Filed on 6/28/2011) (Entered: 06/28/2011)
Set/Reset Deadlines as to 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected,. Responses due by 7/15/2011. Motion Hearing set for 8/26/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (jjoS, COURT STAFF) (Filed on 6/28/2011) (Entered: 06/28/2011)
142 MOTION for Summary Judgment and Memorandum Of Points and Authorities filed by Karen Golinski. Motion Hearing set for 9/16/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 7/15/2011. Replies due by 7/22/2011. (Attachments: # 1 Proposed Order)(Lin, Rita) (Filed on 7/1/2011) (Entered: 07/01/2011)
143 Declaration of Karen Golinski in Support of 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 142 ) (Lin, Rita) (Filed on 7/1/2011) (Entered: 07/01/2011)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 14 of 18

07/01/2011
07/01/2011 07/01/2011 07/08/2011 07/15/2011
07/15/2011 07/15/2011 07/15/2011 07/22/2011 07/22/2011 07/22/2011 07/22/2011
07/22/2011 07/29/2011

144 Declaration of Rita F. Lin in Support of 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 142 ) (Lin, Rita) (Filed on 7/1/2011) (Entered: 07/01/2011)
145 RESPONSE (re 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, ) filed byJohn Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 7/1/2011) (Entered: 07/01/2011)
146 Proposed Order re 145 Opposition/Response to Motion, by John Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 7/1/2011) (Entered: 07/01/2011)
147 REPLY (re 118 MOTION to Dismiss Plaintiff's Second Amended Complaint, Corrected, ) filed byJohn Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 7/8/2011) (Entered: 07/08/2011)
148 MOTION to Strike Extrinsic Materials filed by Bipartisan Legal Advisory Group. Motion Hearing set for 9/16/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Responses due by 7/29/2011. Replies due by 8/5/2011. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Filed on 7/15/2011) (Entered: 07/15/2011)
149 RESPONSE (re 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities ) filed byBipartisan Legal Advisory Group. (Attachments: # 1 Declaration of H. Christopher Bartolomucci, # 2 Exhibit A, # 3 Proposed Order)(Kircher, Kerry) (Filed on 7/15/2011) (Entered: 07/15/2011)
150 REPLY (re 119 MOTION to Dismiss Plaintiff's Second Amended Complaint ) filed byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 7/15/2011) (Entered: 07/15/2011)
151 RESPONSE (re 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities ) filed byJohn Berry, United States Office of Personnel Management. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Hall, Christopher) (Filed on 7/15/2011) (Entered: 07/15/2011)
152 REPLY (re 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities ) And Reply To Defendants' Opposition To Her Motion For Summary Judgment filed byKaren Golinski. (Lin, Rita) (Filed on 7/22/2011) (Entered: 07/22/2011)
153 Request for Judicial Notice re 152 Reply to Opposition/Response Of Defendants' Opposition To Her Motion For Summary Judgment filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 152 ) (Lin, Rita) (Filed on 7/22/2011) (Entered: 07/22/2011)
154 REPLY (re 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities ) And Opposition To Bipartisan Legal Advisory Group's Opposition To Her Motion For Summary Judgment filed byKaren Golinski. (Lin, Rita) (Filed on 7/22/2011) (Entered: 07/22/2011)
155 Declaration of Rita F. Lin in Support of 154 Reply to Opposition/Response, Of Bipartisan Legal Advisory Group's Opposition To Her Motiobn For Summary Judgment filed byKaren Golinski. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 154 ) (Lin, Rita) (Filed on 7/22/2011) (Entered: 07/22/2011)
156 Declaration of Karen Golinski in Support of 154 Reply to Opposition/Response, Bipartisan Legal Advisory Group's Opposition To Her Motion For Summary Judgment filed byKaren Golinski. (Attachments: # 1 Exhibit A)(Related document(s) 154 ) (Lin, Rita) (Filed on 7/22/2011) (Entered: 07/22/2011)
157 RESPONSE (re 148 MOTION to Strike Extrinsic Materials ) by Bipartisan Legal Advisory Group filed byKaren Golinski. (Attachments: # 1 Proposed Order)(Lin, Rita) (Filed on 7/29/2011) (Entered: 07/29/2011)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 15 of 18

08/05/2011 08/11/2011
08/12/2011 08/26/2011 08/29/2011 09/07/2011 09/09/2011 09/09/2011 09/22/2011 09/29/2011 09/30/2011
09/30/2011
10/03/2011 10/03/2011
10/04/2011 10/11/2011
10/12/2011

158 REPLY (re 148 MOTION to Strike Extrinsic Materials ) filed byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 8/5/2011) (Entered: 08/05/2011)
159 ORDER SETTING HEARING ON PENDING MOTIONS: Motion Hearing set for 10/21/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge JEFFREY S. WHITE on 8/11/11. (jjoS, COURT STAFF) (Filed on 8/11/2011) (Entered: 08/11/2011)
160 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byKaren Golinski. (Attachments: # 1 Exhibit)(Borelli, Tara) (Filed on 8/12/2011) (Entered: 08/12/2011)
161 ORDER TO SHOW CAUSE re: Video Recording: Show Cause Response due by 9/9/2011.. Signed by Judge Jeffrey S. White on 8/26/11. (jjoS, COURT STAFF) (Filed on 8/26/2011) (Entered: 08/26/2011)
162 RESPONSE TO ORDER TO SHOW CAUSE by Karen Golinski Statement of Consent to Video Recording. (Borelli, Tara) (Filed on 8/29/2011) (Entered: 08/29/2011)
163 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byKaren Golinski. (Attachments: # 1 Exhibit)(Borelli, Tara) (Filed on 9/7/2011) (Entered: 09/07/2011)
164 RESPONSE TO ORDER TO SHOW CAUSE by Bipartisan Legal Advisory Group Re: Video Recording. (Kircher, Kerry) (Filed on 9/9/2011) (Entered: 09/09/2011)
165 Statement re 161 Order to Show Cause Defendants' Statement of Consent to Video Recording of October 21, 2011 Hearing by John Berry, United States Office of Personnel Management. (Hall, Christopher) (Filed on 9/9/2011) (Entered: 09/09/2011)
166 Letter dated September 16, 2011 from Raymond H. Hawkins. (hdj, COURT STAFF) (Filed on 9/22/2011) (Entered: 09/26/2011)
167 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d (2) filed byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A)(Kircher, Kerry) (Filed on 9/29/2011) (Entered: 09/29/2011)
168 MOTION for Leave to File Superseding Opposition to Plaintiff's Motion for Summary Judgment filed by Bipartisan Legal Advisory Group. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Declaration in Support)(Kircher, Kerry) (Filed on 9/30/2011) (Entered: 09/30/2011)
169 RESPONSE (re 168 MOTION for Leave to File Superseding Opposition to Plaintiff's Motion for Summary Judgment ) filed byKaren Golinski. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L)(Borelli, Tara) (Filed on 9/30/2011) (Entered: 09/30/2011)
170 REPLY (re 168 MOTION for Leave to File Superseding Opposition to Plaintiff's Motion for Summary Judgment ) filed byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 10/3/2011) (Entered: 10/03/2011)
171 OBJECTIONS to re 170 Reply to Opposition/Response To Intervenor Bipartisan Legal Advisory Group's Reply In Support Of Its Motion For Leave To File Superseding Opposition to Plaintiff's Motion For Summary Judgment by Karen Golinski. (Lin, Rita) (Filed on 10/3/2011) (Entered: 10/03/2011)
172 NOTICE of Appearance by Christopher R Hall Notice of Appearance by Tony West (Hall, Christopher) (Filed on 10/4/2011) (Entered: 10/04/2011)
173 ORDER by Judge Jeffrey S. White GRANTING 168 Motion for Leave to File Superceding Opposition to Plaintiff's Motion for Summary Judgment and Setting Briefing and Hearing Schedule. (jswlc2, COURT STAFF) (Filed on 10/11/2011) (Entered: 10/11/2011)
Set/Reset Deadlines as to 148 MOTION to Strike Extrinsic Materials, 119 MOTION to Dismiss Plaintiff's Second Amended Complaint, 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities, 118 MOTION to Dismiss

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 16 of 18

10/14/2011 10/14/2011 11/01/2011
12/14/2011 12/15/2011 12/15/2011 12/15/2011 12/16/2011 12/16/2011 12/16/2011 12/20/2011 01/17/2012
02/22/2012

Plaintiff's Second Amended Complaint, Corrected,. Motion Hearing set for 12/16/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. (jjoS, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)
174 RESPONSE (re 142 MOTION for Summary Judgment and Memorandum Of Points and Authorities ) filed byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Filed on 10/14/2011) (Entered: 10/14/2011)
175 Declaration of Conor B. Dugan in Support of 174 Opposition/Response to Motion for Summary Judgment filed byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 174 ) (Kircher, Kerry) (Filed on 10/14/2011) (Entered: 10/14/2011)
176 Response re 174 Opposition/Response to Motion Bipartisan Legal Advisory Group's Superseding opposition to Her Motion For Summary Judgment byKaren Golinski. (Attachments: # 1 Declaration Lisa M. Diamond, # 2 Declaration Michael Lamb, # 3 Declaration Letitia Anne Peplau, # 4 Declaration Rita F. Lin, # 5 Exhibit A To Lin Declaration, # 6 Exhibit B To Lin Declaration, # 7 Exhibit C To Lin Declaration, # 8 Exhibit D To Lin Declaration, # 9 Exhibit E To Lin Declaration, # 10 Exhibit F To Lin Declaration, # 11 Exhibit G To Lin Declaration, # 12 Exhibit H To Lin Declaration, # 13 Exhibit I To Lin Declaration, # 14 Exhibit J To Lin Declaration, # 15 Exhibit K To Lin Declaration)(Lin, Rita) (Filed on 11/1/2011) (Entered: 11/01/2011)
177 NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on December 14, 2011. (jswlc2, COURT STAFF) (Filed on 12/14/2011) (Entered: 12/14/2011)
178 NOTICE by Bipartisan Legal Advisory Group of Additional Authorities Pursuant to the Court's notice of December 14, 2011 (Bartolomucci, H. Christopher) (Filed on 12/15/2011) (Entered: 12/15/2011)
179 NOTICE by Karen Golinski Of Further Authority Pursuant to December 14 Order (Lin, Rita) (Filed on 12/15/2011) (Entered: 12/15/2011)
180 NOTICE by Karen Golinski re 179 Notice (Other) Amended Notice Of Further Authority Pursuant To December 14 Order (Lin, Rita) (Filed on 12/15/2011) (Entered: 12/15/2011)
181 INCORRECT DOCUMENT ATTACHED − PLEASE DISREGARD AND SEE DOCUMENT NO. 184</b) Minute Entry: Motion Hearing held on 12/16/2011 before Judge Jeffrey S. White (Date Filed: 12/16/2011). (Court Reporter Belle Ball.) (jjoS, COURT STAFF) (Date Filed: 12/16/2011) Modified on 1/6/2012 (jjoS, COURT STAFF). (Entered: 12/16/2011)
182 EXHIBIT 1 filed by Karen Golinski. (hdj, COURT STAFF) (Filed on 12/16/2011) (Entered: 12/19/2011)
184 Minute Entry: Motion Hearing held on 12/16/2011 before Judge Jeffrey S. White (Date Filed: 12/16/2011). (Court Reporter Belle Ball.) (jjoS, COURT STAFF) (Date Filed: 12/16/2011) (Entered: 01/06/2012)
183 NOTICE by Karen Golinski Of Exhibit 1 Lodged At December 16, 2011 Hearing (Attachments: # 1 Exhibit One)(Lin, Rita) (Filed on 12/20/2011) (Entered: 12/20/2011)
185 Transcript of Proceedings held on December 16, 2011, before Judge Jeffrey S. White. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/16/2012. (Ball, Belle) (Filed on 1/17/2012) (Entered: 01/17/2012)
186 ORDER by Judge Jeffrey S. White GRANTING 118 OPM Motion to Dismiss; DENYING 119 BLAG Motion to Dismiss; GRANTING 142 GOLINSKI Motion for Summary Judgment; and DENYING 148 BLAG Motion to Strike as Moot. (jswlc2,

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 17 of 18

02/22/2012 02/24/2012
02/24/2012 02/27/2012 02/27/2012
02/27/2012 02/27/2012 02/28/2012
02/29/2012
02/29/2012 02/29/2012 04/17/2012 06/07/2012 07/17/2012 07/24/2012 08/23/2012 07/16/2013

COURT STAFF) (Filed on 2/22/2012) (Entered: 02/22/2012)
187 JUDGMENT. Signed by Judge Jeffrey S. White on February 22, 2012. (jswlc2, COURT STAFF) (Filed on 2/22/2012) (Entered: 02/22/2012)
188 NOTICE OF APPEAL to the 9th CCA Bipartisan Legal Advisory Group. Appeal of Order on Motion to Dismiss,, Order on Motion for Summary Judgment, Order on Motion to Strike,,,, 186 , Judgment 187 (Appeal fee FEE WAIVED.) (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Filed on 2/24/2012) Modified on 2/28/2012 USCA Case Number 12−15388 (mjj2, COURT STAFF). (Entered: 02/24/2012)
189 Statement re 188 Notice of Appeal, (Representation Statement) by Bipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 2/24/2012) (Entered: 02/24/2012)
190 Transcript Designation and Ordering Form for proceedings held on 12/16/2011 before Judge Jeffrey S. White, re 188 Notice of Appeal, Transcript due by 4/24/2012. (Kircher, Kerry) (Filed on 2/27/2012) (Entered: 02/27/2012)
191 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals by Bipartisan Legal Advisory Group re 188 Notice of Appeal, (mjj2, COURT STAFF) (Filed on 2/27/2012) (Additional attachment(s) added on 2/27/2012: # 1 Docket Sheet) (mjj2, COURT STAFF). (Entered: 02/27/2012)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (mjj2, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
193 USCA Case Number 12−15388 USCA for the Ninth Circuit for 188 Notice of Appeal, filed by Bipartisan Legal Advisory Group. (mjj2, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/28/2012)
192 NOTICE OF APPEAL to the 9th CCA John Berry, United States Office of Personnel Management. Appeal of Order on Motion to Dismiss,,,, Order on Motion for Summary Judgment,, Order on Motion to Strike, 186 , Judgment 187 (Appeal fee FEE WAIVED.) (Hall, Christopher) (Filed on 2/28/2012) Modified on 3/2/2012 USCA Case Number 12−15409 (mjj2S, COURT STAFF). (Entered: 02/28/2012)
194 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re John Berry, United States Office of Personnel Management re 192 Notice of Appeal, (Attachments: # 1 Docket Sheet)(mjj2, COURT STAFF) (Filed on 2/29/2012) (Entered: 02/29/2012)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (mjj2, COURT STAFF) (Filed on 2/29/2012) (Entered: 02/29/2012)
195 USCA Case Number 12−15409 USCA for the Ninth Circuit for 192 Notice of Appeal, filed by John Berry, United States Office of Personnel Management. (mjj2S, COURT STAFF) (Filed on 2/29/2012) (Entered: 03/02/2012)
196 ORDER of USCA as to 188 Notice of Appeal, filed by Bipartisan Legal Advisory Group, 192 Notice of Appeal, filed by John Berry, United States Office of Personnel Management (mjj2, COURT STAFF) (Filed on 4/17/2012) (Entered: 04/17/2012)
197 ORDER of USCA as to 188 Notice of Appeal, filed by Bipartisan Legal Advisory Group, 192 Notice of Appeal, filed by John Berry, United States Office of Personnel Management (hdj, COURT STAFF) (Filed on 6/7/2012) (Entered: 06/07/2012)
198 ORDER of United States Supreme Court. (hdj, COURT STAFF) (Filed on 7/17/2012) (Entered: 07/17/2012)
Fed Ex'd Document Request to US Court of Appeals (hdj, COURT STAFF) (Filed on 7/24/2012) (Entered: 07/24/2012)
199 ORDER of USCA as to 188 Notice of Appeal, filed by Bipartisan Legal Advisory Group, 192 Notice of Appeal, filed by John Berry, United States Office of Personnel Management (hdj, COURT STAFF) (Filed on 8/23/2012) (Entered: 08/23/2012)
200 ORDER of U.S. Supreme Court. (hdjS, COURT STAFF) (Filed on 7/16/2013) (Entered: 07/16/2013)

Case: 3:10-cv-00257-JSW As of: 02/07/2015 11:37 AM PST 18 of 18

07/29/2013 07/29/2013

201 MANDATE of USCA as to 188 Notice of Appeal, filed by Bipartisan Legal Advisory Group, 192 Notice of Appeal, filed by John Berry, United States Office of Personnel Management (hdjS, COURT STAFF) (Filed on 7/29/2013) (Entered: 07/29/2013)
202 CLERKS Letter Spreading Mandate to Counsel (hdjS, COURT STAFF) (Filed on 7/29/2013) (Entered: 07/29/2013)

 
 Case: 12-15409 07/03/2012 ID: 8236887 DktEntry: 77 Page: 1 of 94

HLG Helen L. Gilbert Attorney

U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW, Rm: 7228 Washington, D.C. 20530-0001
Tel: (202) 514-4826 Fax: (202) 514-8151

BY ECF FILING

July 3, 2012

Ms. Molly C. Dwyer Clerk, United States Court of Appeals for the Ninth Circuit P. O. Box 193939 San Francisco, CA 94119-3939

RE: Golinski v. Office of Perssonnel Management. – Nos. 12-15338 & 12-15409

Dear Ms. Dwyer:

We are writing this letter to inform the Court that the Solicitor General today filed in the Supreme Court of the United States a petition for the issuance of a writ of certiorari before judgment with respect to the pending appeals in this case. A copy of that petition is attached hereto. At the same time, the Solicitor General also filed a petition for writ of certiorari to the First Circuit in Massachusetts v. HHS, Nos. 10-2204 & 10-2214, — F. 3d —, 2012 WL 1948017 (May 31, 2012), which, like this case, presents the question of the constitutionality of Section 3 of the Defense of Marriage Act. We also note, for the Court’s information, that the Bipartisan Legal Advisory Group of the United States House of Representatives filed a petition for writ of certiorari in Massachusetts v. HHS on June 29, 2012.

We would appreciate your distributing a copy of this letter to the members of the panel assigned to these consolidated appeals.

Sincerely,

attachment cc: Service via ECF

/s/ HELEN L. GILBERT Helen L. Gilbert Attorney, Appellate Staff Civil Division

Case: 12-15409 07/03/2012 ID: 8236887 DktEntry: 77 Page: 2 of 94
No.
In the Supreme Court of the United States
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

Case: 12-15409 07/03/2012 ID: 8236887 DktEntry: 77 Page: 3 of 94
QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

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PARTIES TO THE PROCEEDING
Petitioners are the Office of Personnel Management and John Berry, Director of the Office of Personnel Management.
Respondent who was plaintiff below is Karen Golinski.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

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TABLE OF CONTENTS
Page
Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional and statutory provisions involved . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . 9
A. Review of the constitutionality of DOMA Section 3 is warranted . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. The exceptional public importance of the question presented warrants granting certiorari before judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Appendix A – Opinion of the district court (Feb. 22, 2012) . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B – Judgment of the district court (Feb. 22, 2012) . . . . . . . . . . . . . . . . . . . . 62a
Appendix C – Defendants’ notice of appeal (Feb. 28, 2012) . . . . . . . . . . . . . . . . . . . . 64a
Appendix D – Intervenor-Defendant’s notice of appeal (Feb. 24, 2012) . . . . . . . . . . . . . 66a
Appendix E – Order of the court of appeals (May 22, 2012) . . . . . . . . . . . . . . . . . . . . 68a
Appendix F – Constitutional and statutory provisions involved . . . . . . . . . . . . . . . . 70a

Cases:

TABLE OF AUTHORITIES

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . 3
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . 7
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . 8

(III)

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IV

Cases—Continued:

Page

Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . . . . 14 Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . 11 Golinski, In re:
587 F.3d 956 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 4 587 F.3d 901 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 4 Gratz v. Bollinger, 539 U.S. 244 (2003) . . . . . . . . . . . 14, 15 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . . . . . . 7, 12 INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . 10 Marriage Cases, In re, 183 P.3d 384 (Cal. 2008) . . . . . . . 3 Massachusetts v. United States Dep’t of Health & Human Servs., Nos. 10-2204, -2207, and -2214, 2012 WL 1948017 (1st Cir. May 31, 2012) . . . . . 3, 11, 15 Mistretta v. United States, 488 U.S. 361 (1989) . . . . . . . 14 National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012) . . . . . . . . . . . . . . . . . . . . . . . 10 New Haven Inclusion Cases, 399 U.S. 392 (1970) . . . . . 15 Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) . . . . . . . . . 3 Quirin, Ex parte, 317 U.S. 1 (1942) . . . . . . . . . . . . . . . . . 14 Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . 11 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) . . . . . . . . . . . . 3 United States v. Bankers’ Trust Co., 294 U.S. 240 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Fanfan, 543 U.S. 220 (2005) . . . . . 14, 15

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V

Cases—Continued:

Page

United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . 14
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Constitutions, statutes and rule:

U.S. Const.: Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 11 Amend. XIV (Equal Protection Clause) . . . . . . . . . . . . 3
Cal. Const. Art. I, § 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . . 2 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . passim
5 U.S.C. 8901(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 28 U.S.C. 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sup. Ct. R. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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VI

Miscellaneous—Continued:

Page

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . 3, 8
James Lindgren & William R. Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup. Ct. Rev. 259 . . . . . . . . . . . . . . . 14
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10
U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report (2004), http:// www.gao.gov/new.items/d04353r.pdf . . . . . . . . . . . 3, 15

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In the Supreme Court of the United States
No. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the Office of Personnel Management, et al., respectfully petitions for a writ of certiorari before judgment in a case pending on appeal to the United States Court of Appeals for the Ninth Circuit.
OPINION BELOW
The opinion of the district court (App., infra, 1a-61a) is reported at 824 F. Supp. 2d 968.
JURISDICTION
The judgment of the district court was entered on February 22, 2012. Notices of appeal were filed on February 24, 2012, and February 28, 2012 (App., infra, 64a-
(1)

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2 65a, 66a-67a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 70a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7).

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3
b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including California, later recognized such marriages under their respective laws. See Massachusetts v. United States Dep’t of Health & Human Servs., Nos. 10-2204, -2207, and -2214, 2012 WL 1948017, at *1 nn.1-2; In re Marriage Cases, 183 P.3d 384 (Cal. 2008).1
Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/new.items/ d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial ben-
1 The California Supreme Court’s decision in In re Marriage Cases was superseded by a 2008 state constitutional amendment that limited state-recognized marriages to those between a man and a woman. Cal. Const. Art. I, § 7.5. That amendment did not, however, invalidate samesex marriages performed before its effective date. Strauss v. Horton, 207 P.3d 48, 98-110, 119-122 (Cal. 2009) (interpreting the amendment to apply prospectively only). The Ninth Circuit later struck down the constitutional amendment as invalid under the Equal Protection Clause. Perry v. Brown, 671 F.3d 1052, 1096 (2012). The validity of that ruling is not at issue in this case.

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4 efits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18.
2. Respondent Golinski is a staff attorney employed by the United States Court of Appeals for the Ninth Circuit. App., infra, 2a. In 2008, she married her samesex partner of more than 20 years, with whom she has a young son, in California. Ibid.; Second Am. Compl. ¶¶ 15, 17, 19. After they married, Golinski sought to enroll her spouse as a beneficiary under her federal employee “self and family” health insurance plan. Second Am. Compl. ¶¶ 17, 19, 22. The Administrative Office of the United States Courts refused her request on the ground that Section 3 of DOMA forbids extending Federal Employee Health Benefits Plan coverage to samesex spouses. Id. ¶¶ 23-24; see 5 U.S.C. 8901(5); see also 1 U.S.C. 7.
Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution Plan, contending that the denial of health benefits violated the Plan’s provisions forbidding discrimination on the basis of sex or sexual orientation. App., infra, 2a-3a. In a series of orders, Chief Judge Kozinski, sitting in his administrative capacity, ruled in Golinski’s favor and ordered the government to make health benefits available to Golinski’s spouse on the same terms that an opposite-sex spouse would have enjoyed. In re Golinski, 587 F.3d 956 (9th Cir. 2009) (Kozinski, C.J.); In re Golinski, 587 F.3d 901 (9th Cir. 2009) (Kozinski, C.J.); see App., infra, 3a-6a.
Golinski thereafter filed a mandamus action in the United States District Court for the Northern District of California to compel compliance with Chief Judge Kozinski’s orders. The district court granted the govern-

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5 ment’s motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief, but granted leave to amend. 781 F. Supp. 2d 967 (N.D. Cal. 2011); see App., infra, 5a-6a. Golinski then filed an amended complaint in which she, inter alia, challenged the constitutionality of Section 3, as applied to deny health coverage for her spouse, and sought declaratory and injunctive relief. App., infra, 7a; Second Am. Compl. ¶¶ 72, 74-81.
3. While Golinski’s mandamus action was pending, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011) (Attorney General Letter).2 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the relevance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis
2 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

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6 review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
Following the Attorney General’s announcement, respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.3 The district court granted the motion. 6/3/11 Order 1; see App., infra, 7a.
3 Two of the group’s five members declined to support intervention. BLAG Mot. to Intervene 1 n.1 (May 4, 2011).

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7 Both BLAG and the government moved to dismiss Golinski’s amended complaint challenging the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss Golinski’s constitutional claim solely for purposes of ensuring that the court had Article III jurisdiction to enter judgment for or against the federal officials tasked with enforcing Section 3. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 of DOMA and that, under that standard of review, Section 3 violates the equal protection guarantee of the Fifth Amendment. Gov’t Br. in Opp. to Mots. to Dismiss 2-23 (July 1, 2011). 4. The district court denied BLAG’s motion to dismiss and granted summary judgment in favor of Golinski, concluding that Section 3 of DOMA violates the equal protection guarantee of the Fifth Amendment. App., infra, 1a-61a. The district court acknowledged that the Ninth Circuit had previously held that laws that classify on the basis of sexual orientation are subject to deferential review under a rational basis standard. See App., infra, 20a-21a (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990)). The district court concluded, however, that High Tech Gays was no longer binding in light of intervening Supreme Court precedent. Id. at 21a-24a. The court explained that High Tech Gays had relied on this Court’s nowoverruled decision in Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003), upholding a state criminal prohibition on sodomy, as well as on a distinction between sexual orientation and same-sex behavior that this Court has since re-

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8 jected, see Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010). After examining several factors bearing on the applicability of heightened scrutiny, including the history of discrimination against gay and lesbian individuals and the irrelevance of sexual orientation to an individual’s ability to contribute to society, the district court concluded that heightened scrutiny applies to sexual orientation classifications. App., infra, 25a-34a.
The district court held that Section 3 fails under heightened scrutiny. App., infra, 34a-53a. The court concluded that none of the actual rationales underlying Section 3’s enactment, as set out in the House Committee Report accompanying DOMA, provides a justification for the law substantially related to an important governmental objective. Id. at 36a-44a (citing 1996 House Report 12-18). The court explained that denying benefits to same-sex couples who are already married under state law does not substantially further any governmental interest in “responsible procreation and child-rearing” or in “nurturing the institution of traditional, heterosexual marriage.” Id. at 36a; see id. at 36a42a. The court further explained that neither an interest in “defending traditional notions of morality” nor an interest in “preserving scarce government resources” justifies Section 3’s differential treatment of same-sex married couples. Id. at 36a; see id. at 42a-44a.
In the alternative, the district court held that Section 3 fails rational basis review. App., infra, 44a-59a. The court concluded that none of the stated rationales for Section 3’s enactment bears a rational relationship to a legitimate governmental objective. Id. at 47a-53a. The court also rejected several additional rationales offered by BLAG, including “preserving the status quo in the

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9 federal definition of marriage while waiting for the states to ‘tinker with the substantive centuries-old definition of marriage,’ ” id. at 54a (citation omitted), “Congressional caution in [an] area of social divisiveness,” id. at 56a, and maintaining consistency in the provision of federal benefits, id. at 58a. The court reasoned that, because pre-DOMA federal law generally recognized marriages that were valid under state law, Section 3 neither preserves the status quo nor promotes consistency in the administration of federal programs. Id. at 54a-56a, 58a-59a. And in the court’s view, “[t]he fact that the issue is socially divisive” is not a rational basis for “the discriminating classifications in the law.” Id. at 56a-58a.
5. Both BLAG and the government filed timely notices of appeal to the United States Court of Appeals for the Ninth Circuit. App., infra, 64a-65a (government notice of appeal); id. at 66a-67a (BLAG notice of appeal). The court of appeals has jurisdiction pursuant to 28 U.S.C. 1291. The appeals were docketed as No. 12-15388 and No. 12-15409.
The government petitioned the court of appeals for initial hearing en banc. The court denied the petition. Pet. App. 68a-69a. The case remains pending before a panel of that court. See ibid. The case is therefore “in the court[] of appeals” within the meaning of 28 U.S.C. 1254. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 83-84 (9th ed. 2007).
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. Because such differential treat-

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10 ment bears no substantial relationship to any important governmental objective, Section 3 violates the guarantee of equal protection secured by the Fifth Amendment.
Although the Executive Branch agrees with the district court’s determination in this case that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As the federal entities charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a congressional enactment on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).4
4 The fact that the government agrees with respondent Golinski that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D

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11
The government is today filing a petition for a writ of certiorari seeking review of the decision of the United States Court of Appeals for the First Circuit in Massachusetts v. United States Department of Health & Human Services, Nos. 10-2204, -2207, and -2214, 2012 WL 1948017 (May 31, 2012), which invalidated Section 3 as violative of the Fifth Amendment’s equal protection guarantee. Certiorari before judgment is warranted under the exceptional circumstances of this case to ensure that this Court has an adequate vehicle to resolve the question of Section 3’s constitutionality in a timely and definitive manner. Authoritative resolution of the question presented is of great importance to the United States and to respondent Golinski and tens of thousands
and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department’s position in this case. The Department did not oppose the subsequent intervention by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation).

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12 of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law.
A. Review Of The Constitutionality Of DOMA Section 3 Is Warranted
Review is warranted in this case because the court below invalidated an Act of Congress as unconstitutional. As the government explained in its petition for a writ of certiorari in Massachusetts, the question of Section 3’s constitutionality raises important questions of federal law that have not been, but should be, settled by this Court. Massachusetts Pet. 14-22.
As the petition in Massachusetts further explains, although every court of appeals to address the issue has concluded that classifications based on sexual orientation are subject to rational basis review, none has offered an explanation for that conclusion that withstands scrutiny under this Court’s precedents. Massachusetts Pet. 18-21. In the decision below, the district court concluded that Ninth Circuit precedent applying rational basis review to sexual orientation classifications is irreconcilable with intervening Supreme Court precedent. See App., infra, 21a-23a (criticizing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990)). The court further concluded that each factor bearing on the applicability of heightened scrutiny, including whether the challenged legislation targets a class of individuals who have historically suffered discrimination on the basis of a characteristic not ordinarily relevant to state decisionmaking, counsels in favor of applying heightened scrutiny to classifications based on sexual orientation. Id. at 25a-34a.

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13 The district court concluded that Section 3 cannot survive under heightened scrutiny because the denial of federal benefits to same-sex couples who are legally married under their States’ laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment. App., infra, 36a44a. Alternatively, the district court concluded that Section 3 would fail even rational basis review because Section 3 is not rationally related to any conceivable legitimate interest of the federal government. Id. at 44a-59a. This case squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal statute that draws distinctions among persons who are legally married under their States’ laws on the basis of their sexual orientation. For the reasons given in the government’s Massachusetts petition, those questions, and the ultimate question of the constitutionality of Section 3 of DOMA, warrant authoritative resolution by this Court.
B. The Exceptional Public Importance Of The Question Presented Warrants Granting Certiorari Before Judgment
In this case, unlike Massachusetts, the court of appeals has not yet reviewed the judgment. But also unlike Massachusetts, the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question. Because the issues raised by the decision below are of exceptional public importance and call for definitive and timely resolution by this Court, the petition for

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14 a writ of certiorari before judgment in this case should be granted.
1. Under this Court’s rules, a petition for a writ of certiorari before judgment in a case pending in a court of appeals will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This Court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions. See, e.g., United States v. Fanfan, 543 U.S. 220, 229 (2005) (constitutionality of mandatory applications of the United States Sentencing Guidelines); Gratz v. Bollinger, 539 U.S. 244, 259-260 (2003) (constitutionality of race-conscious undergraduate admissions program); Mistretta v. United States, 488 U.S. 361, 362, 371 (1989) (constitutionality of the federal Sentencing Guidelines); Dames & Moore v. Regan, 453 U.S. 654, 667-668 (1981) (validity of Iran hostage agreement); United States v. Nixon, 418 U.S. 683, 686-687 (1974) (validity of subpoena to the President); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952) (validity of President’s steel seizure order); Ex parte Quirin, 317 U.S. 1, 19-20 (1942) (validity of President’s assignment to a military tribunal of jurisdiction over the trial of belligerent saboteurs). See generally James Lindgren & William R. Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup. Ct. Rev. 259.
Among these cases are several in which the Court has granted certiorari before judgment because it had also granted review in another case presenting the same

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15 or similar issue. See, e.g., Fanfan, 543 U.S. at 229 (decided with United States v. Booker); Gratz, 539 U.S. at 259 (presenting issue similar to another case granted in the ordinary course); New Haven Inclusion Cases, 399 U.S. 392, 418 (1970) (petition for certiorari before judgment granted to permit consideration of issues in tandem with closely related case in which Court had noted probable jurisdiction); United States v. Bankers’ Trust Co., 294 U.S. 240, 243 (1935) (Court granted United States’ petition for certiorari before judgment where another case presenting same issue was already pending before the Court).
2. The government is today filing a petition for a writ of certiorari to the First Circuit in Massachusetts, supra. A grant of certiorari before judgment in this case is warranted to ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion.
Assurance that the Court will have a vehicle in which to reach and resolve the important issues presented is warranted in light of the great public importance of the issues at stake. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have an important impact on the conduct of a wide array of Executive functions. Consistent with the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution of the question presented. Other cases challenging the

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16 constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and definitive ruling on the constitutionality of Section 3 of DOMA is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
JULY 2012

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APPENDIX A UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-00257 JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
Filed: Feb. 22, 2012
ORDER
Now before the Court are the motion to dismiss and the motion to strike filed by Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) and the motion for summary judgment filed by Plaintiff Karen Golinski (“Ms. Golinski”). Defendants the United States Office of Personnel Management (“the OPM”) and John Berry, its director, also filed a motion to dismiss and a response to BLAG’s motion to dismiss. These motions compel the Court to determine whether the Defense of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms.
(1a)

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2a Golinski, violates the United States Constitution by refusing to recognize lawful marriages in the application of laws governing benefits for federal employees. Having considered the parties’ papers, relevant legal authority, and the record in this case, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss.
BACKGROUND
The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit. (Second Amended Complaint (“SAC”) at ¶ 18.) Ms. Golinski has been partners with Amy Cunninghis (“Ms. Cunninghis”) for over twenty years. They registered as domestic partners with the City and County of San Francisco in 1995, and with the State of California in 2003. (Id. at ¶¶ 15-17.) On August 21, 2008, they were legally married under the laws of the State of California. (Id. at ¶ 17.)
Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. (Id. at ¶¶ 19, 22.) The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women. (Id. at ¶ 23.) Finding that she could not secure comparable health insurance coverage, on October 2, 2008, Ms. Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution

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3a (“EDR”) Plan, and contended that the refusal to grant her health benefits was a violation of the Plan’s nondiscrimination provision. (Id. at ¶ 48.) The EDR Plan specifically prohibits employment discrimination based on, among other things, sex or sexual orientation. (Id. at ¶ 47.)
By orders dated November 24, 2008 and January 13, 2009, Chief Judge Alex Kozinski, sitting in his administrative capacity as arbiter of the Judicial Council, found that Ms. Golinski had suffered discrimination under the Court’s EDR Plan and ordered the AO to process her health benefit election forms. (Id., Exs. A, B.) Chief Judge Kozinski found that the denial of health benefits was based solely on the grounds of sex and sexual orientation, in direct violation of the EDR Plan’s nondiscrimination provision covering Ninth Circuit employees. (Id., Ex. B at 1-2.) Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had the discretion to extend health benefits to Ms. Golinski’s same-sex spouse by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. (Id. at 2-3.) Chief Judge Kozinski ordered the AO “to submit Karen Golinski’s Health Benefits Election form 2089 . . . to the appropriate insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of the listed spouse.” (Id., Ex. B at 7.)
The AO complied, but the OPM instructed Ms. Golinski’s insurance carrier not to comply with the Ninth Circuit Judicial Council’s remedial order. The OPM directed the AO and the Blue Cross and Blue Shield Service Benefit Plan not to process Ms. Golinski’s request on the basis that federal law, specifically Section 3 of

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4a DOMA, defines spouse as a member of the opposite sex and, accordingly, proscribes the enrollment of Ms. Golinski’s same-sex spouse in her health benefits program.
In response, on November 19, 2009, Chief Judge Kozinski issued another order addressing the OPM’s conduct. The Chief Judge, again sitting as an administrator, held that he had the authority, under both the Ninth Circuit’s EDR Plan and the separation of powers doctrine, to interpret the laws applicable to judicial employees in a manner that would displace “any contrary interpretation by an agency or an officer of the Executive.” (Id., Ex. C at 14-15.) Chief Judge Kozinski held that allowing the OPM to interfere with his orders would be tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary’s] autonomy.” (Id. at 11.) The Chief Judge further held that “[o]rdering enrollment is proper and within my jurisdiction because Congress intended [the EDR] tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.” (Id. at 9.)
Chief Judge Kozinski granted Ms. Golinski both back pay and prospective relief. The injunctive relief required that the OPM “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, or that the plans would violate their contracts with the OPM by enrolling Ms. Golinski’s wife as a beneficiary” and “[c]ease at once its interfer-

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5a ence with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.” (Id. at 15-16 (emphasis in original).)
The Chief Judge, in his order dated November 19, 2009, also invited the OPM to “appeal so much of this order as concerns it using the procedures outlines in the [EDR] plan.” (Id. at 16.) In response, the OPM did not appeal the order, but instead issued a press release indicating that it was under no obligation to comply with the administrative order and, although in favor of its repeal, indicated that the Executive agency was tasked with enforcing DOMA, which prohibits same-sex spouses of federal employees from enrolling in the federal health benefits program. (Id., Ex. F.)
In his final administrative order, dated December 22, 2009, Chief Judge Kozinski stated that the time for appeal had expired, thus rendering his prior orders in the matter “final and preclusive on all issues decided therein.” (Id., Ex. D.) He further authorized Ms. Golinski to pursue any action she deemed fit against the OPM, including filing a mandamus action in the district court. (Id.)
On January 20, 2010, Ms. Golinski filed a mandamus action before this Court, seeking to have the OPM rescind its guidance to Blue Cross and Blue Shield Service Benefit Plan to deny Ms. Golinski’s wife benefits as precluded by DOMA and to comply with Chief Judge Kozinski’s prior orders in her administrative claim.

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6a On January 26, 2010, Ms. Golinski moved for a preliminary injunction seeking compliance with Chief Judge Kozinski’s order dated November 19, 2009, requiring that the OPM: (1) “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan,” and (2) “cease at once its interference with the jurisdiction of this tribunal” and “not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law.” (Id. at Ex. C, 15-16.) On May 10, 2010, the OPM moved to dismiss the First Amended Complaint on the basis that this Court lacked jurisdiction to grant mandamus relief under these peculiar procedural circumstances. While those motions were pending and after the parties submitted supplemental briefing on the issue of the constitutionality of DOMA, on February 23, 2011, at the direction of President Obama, Attorney General Eric Holder announced that the Justice Department would cease its legal defense of Section 3 of DOMA. Although it determined that the statute was unconstitutional and resolved not to continue to defend DOMA in pending court cases, the Justice Department indicated that it did intend to continue to enforce the law unless it was either repealed by Congress or the courts rendered a final judgment striking it down. (See Plaintiff’s Notice of Supplemental Authority (“NSA”) dated February 23, 2011, Ex. 2.) On March 16, 2011, the Court granted the motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief. Finding that amendment would not

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7a necessarily be futile, the Court dismissed the matter with leave to amend.
On April 14, 2011, Ms. Golinski filed her Second Amended Complaint in which she directly challenges the discrimination against her as a lesbian married to someone of the same sex. (SAC at ¶ 1.) In her amended complaint, Ms. Golinski alleges an action for declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201-2202 and Federal Rule of Civil Procedure 57 and for review of an agency action pursuant to 5 U.S.C. Sections 701-706. (Id. at ¶ 7.) By her amended complaint, Ms. Golinski seeks a determination that Section 3 of DOMA, 1 U.S.C. Section 7, as applied to her, violates the United States Constitution by refusing to recognize lawful marriages for the purposes of application of the laws governing benefits for federal employees. (Id.) Ms. Golinski alleges that as a result of the violation of the Constitution, she has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to her if she were a heterosexual with a opposite-sex spouse. (Id.)
The majority of a five-member committee in Congress voted to defend DOMA and, on May 4, 2011, BLAG sought to intervene in this matter. On June 3, 2011, this Court issued an order granting BLAG’s unopposed motion to intervene as a party-defendant for the limited purpose of defending the constitutionality of Section 3 of DOMA.
On June 3, 2011, BLAG moved to dismiss the Second Amended Complaint on the basis that Ms. Golinski fails to state a claim upon which relief may be granted because, as a matter of law, Section 3 of DOMA does not violate her rights under the equal protection component

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8a
of the Due Process Clause of the Fifth Amendment. On the same date, the OPM moved to dismiss Ms. Golinski’s claim as set forth in the Second Amended Complaint only insofar as any claims could reasonably be construed to assert a statutory claim as to the language of the Federal Health Benefits Act of 1959. On July 1, 2011, Ms. Golinski moved for summary judgment. On July 15, 2011, BLAG moved to strike extrinsic materials from the record on Ms. Golinski’s opposition to the motion to dismiss. The Court heard oral argument on the motions on December 16, 2011.1
The Court shall address additional facts as necessary in the remainder of this order.
ANALYSIS A. Legal Standards.
1. Motion to Dismiss.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd . v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Even under Rule 8(a)’s liberal pleading standard, “a plaintiff’s obligation to provide the
1 Initially, BLAG moved to strike several declarations submitted by Ms. Golinski in response to the motion to dismiss. However, as the Court decides the motion for summary judgment and has therefore considered the full record, BLAG agreed to withdraw its motion to strike. The motion to strike is therefore DENIED as moot.

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9a ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 556-57) (internal quotation marks omitted). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). The Court may consider the facts

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10a alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint, when the authenticity of those documents is not questioned, and other matters of which the Court can take judicial notice. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009). Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss. Such consideration does not convert the motion to dismiss into a motion for summary judgment. See United States v. Ritchie, 343 F.3d 903, 908 (9th Cir. 2003); Branch, 14 F.3d at 454.
2. Motion for Summary Judgment.
A motion for summary judgment is guided by a different standard. Summary judgment is appropriate when the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case. Id. at 248. The party moving for summary judgment bears the initial responsibility of identifying those portions of the record which demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In the absence of

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11a such facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323.
Once the moving party meets this initial burden, the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
B. Defense of Marriage Act.
This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski, a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse. Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.
In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a

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12a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin, a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples may be entitled to marry under that state’s constitution. 74 Haw. 530 (1993). The decision raised the possibility that, for the first time, same-sex couples could begin the process of obtaining state-sanctioned marriage licenses. In debating the provisions of DOMA, the House referenced the Baehr decision as the beginning of an “orchestrated assault being waged against traditional heterosexual marriage” and expressed concern that the development “threaten[ed] to have very real consequences . . . on federal law.” H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.” or “House Report”). More specifically, the House Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” Id. at 10. Although a later amendment to the Hawaii constitution withheld permitting same-sex marriage in the state, Congress, explicitly in reaction to the impending Hawaii decision, sought a means both (1) to “reserve[] each State’s ability to decide” what should legally constitute a valid marriage under its own state laws, and (2) to “lay[] down clear rules” regarding what constitutes a marriage for purposes of federal law. Id. at 2.

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13a
In Section 2 of DOMA, Congress, by virtue of the express grant of authority under the second sentence of the Full Faith and Credit Clause, permitted a state to decline to give effect to the laws of other states respecting same-sex marriage. In enacting Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law. Id. at 29 (citing Black’s Law Dictionary 972 (6th ed. 1990)).
The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of (or even indifferent to) the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” Id. at 12. “Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F. Supp. 2d 374, 379 (D. Mass. 2010).2 Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Con-
2 In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect and concluded that the law implicated at least 1,049 federal laws, including those related to entitlement programs like Social Security, health benefits and taxation. A further study in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status. See Gill, 699 F. Supp. 2d at 379.

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14a gress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare. Id.
It is clear and undisputed that the federal health benefits Ms. Golinski seeks in trying to add her wife as a beneficiary under her health benefits plan falls under the reach of DOMA. The Federal Employees Health Benefits Program (“FEHB”) is a comprehensive program providing health insurance for federal civilian employees and their family members. 5 U.S.C. § 8905. The OPM administers the FEHB and negotiates contracts for coverage with potential carriers and sets the premiums for each plan. Id., §§ 8902, 8903, 8906. A federal employee enrolled in the FEHB chooses a carrier and plan and may determine whether to enroll for an individual plan, named “self only,” or for “self and family” coverage which, under the OPM’s regulations, “includes all family members who are eligible to be covered by the enrollment.” 5 C.F.R. § 890.302(a)(1). Under the FEHB, a “member of family” is defined as either “the spouse of an employee . . . [or] an unmarried dependent child under 22 years of age.” 5 U.S.C. § 8901(5). An employee enrolled under an individual plan may change to family coverage by submitting documentation to the employing office during the annual open season period or within sixty days of a change in family status, such as change in marital status. Id., § 8905(f); 5 C.F.R. §§ 890.301(f), (g).
Within sixty days of her marriage, Ms. Golinski sought to enroll her wife as a beneficiary of the family health plan. The OPM found Ms. Cunninghis was ineligible to qualify as a member of the family because, un-

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15a
der DOMA, she did not qualify as a spouse of an employee.3 The question before the Court is whether Section 3 of DOMA, as applied to Ms. Golinski, violates constitutional principles of equal protection.
C. Equal Protection Analysis and Standard of Review.
The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (internal citations omitted). Although the Fifth
3 At the administrative appeal from the denial of benefits, Chief Judge Kozinski found that the FEHB statute confers on the OPM the discretion to extend health benefits to same-sex couples by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. (SAC, Ex. B at 2-3.) The Court finds this reasoning unpersuasive.
Where the statute unambiguously defines a term such as “member of family” to mean spouse (or dependent child under 22 years old), that definition controls to the exclusion of any meaning that is not explicitly stated in the definition. See Colautti v. Franklin, 439 U.S. 379, 393 n.10 (1979); see also TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001) (holding that, for purposes of statutory construction, expression of one thing is the exclusion of the other). DOMA offers the same clarity and defines “spouse” for the purposes of determining the meaning of federal legislation as “a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7. Confronted with such unambiguous statutory language, the Court is not persuaded that the FEHB statute could provide the OPM with the discretion to provide health benefits to same-sex couples. See In re Levenson, 587 F.3d 925, 930-31 (9th Cir. 2009); Gill, 699 F. Supp. 2d at 385-86. This disposes of Ms. Golinski’s remaining statutory claim and the OPM’s motion to dismiss that claim, to the extent it is still asserted, is GRANTED.

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16a Amendment to the United States Constitution does not contain an Equal Protection Clause, the Fifth Amendment’s Due Process Clause includes an equal protection component. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011) (citing Romer, 517 U.S. at 623.) It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny. Romer, 517 U.S. at 623. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).
However, courts must balance this mandate with the “practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citations omitted). The equal protection guarantee preserves a measure of power to the state and the federal

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17a government to enact legislation that classifies certain groups. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979). In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Romer, 517 U.S. at 631. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Laws that do not burden a protected class or infringe on a constitutionally protected fundamental right are subject to rational basis review. Romer, 517 U.S. at 631. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest. Id. (citing Heller v. Doe by Doe, 509 U.S. 312, 319-320 (1993)).
In resolving an equal protection challenge, the Court “must first determine what classification has been created” by the legislation. Aleman v. Glickman, 217 F.3d 1191, 1195 (9th Cir. 2000); see also Lazy Y Ranch, 546 F.3d at 589. The plaintiff must show that the “law is applied in a discriminatory manner or imposes different burdens on different classes of people.” Lazy Y Ranch, 546 F.3d at 589 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995)). The Court must then ascertain the appropriate level of scrutiny to em-

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18a
ploy. In re Kandu, 315 B.R. 123, 142 (W.D. Wash. 2004).4
1. Level of Scrutiny.
Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples. Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasi-suspect class entitled to heightened scrutiny, the Court must look at various factors.5 The Supreme Court has considered: (1) the his-
4 Ms. Golinski challenges the application of DOMA because it discriminates both on the basis of sex and on the basis of sexual orientation. (Golinski Reply on Motion for Summary Judgment at 7-8.) Sexual orientation discrimination can take the form of sex discrimination. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry”). Here, for example, Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex. But DOMA also operates to restrict Ms. Golinski’s access to federal benefits because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian. Accordingly, the Court addresses the Equal Protection challenge on the basis of sexual orientation.
5 The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law. Thus, Baker v. Nelson, 409 U.S. 810 (1972), which ostensibly ad-

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19a
tory of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
dressed whether same-sex couples have a constitutional right to marry, is irrelevant here. See Perry v. Brown, — F.3d —, 2012 WL 372713 at, *17 n.14 (9th Cir. 2012) (“Perry II”).
However, it is established that there is a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”).
The analysis of the fundamental right to marry has not depended upon the characteristics of the spouse. The Supreme Court cases addressing the fundamental right to marry do not define the fundamental right in narrow terms. In Loving, the Court defined the fundamental right as the right to marry, not the right to interracial marriage. 388 U.S. at 12. In Turner, the fundamental right was the right to marry, not the right to inmate marriage. 482 U.S. at 94-96. In Zablocki, the fundamental right was the right to marry, not the right of people owing child support to marry. 434 U.S. at 383-86.

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20a power of the subject class. See Varnum v. Brien, 763 N.W.2d 862, 887-88 (Iowa 2009) (collecting cases).
No single factor for determining elevated scrutiny is dispositive. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 321 (1976). The presence of any of the factors is a signal that the particular classification is “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,” thus requiring heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Supreme Court has placed far greater weight on two factors:
whether the group has been the subject of longstanding and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 167-68 (2008).
2. Distinguishing High Tech Gays Finding on Standard of Review.
Before the Court may assess the various factors that apply to determine the appropriate level of scrutiny to apply in this matter, the Court must address the holding in High Tech Gays v. Defense Industrial Security Clearance Office, which addresses the standard of review for classifications based on sexual orientation. 895 F.2d 563,

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21a 571 (9th Cir. 1990). In High Tech Gays, decided before the Supreme Court revised much of the underlying legal preconceptions upon which this case rests, the Ninth Circuit determined that the classification of homosexuals lacks the indicia of a suspect or quasi-suspect category. Accordingly, the Ninth Circuit held that the government need only come forth with a rational basis to sustain its classifications against the gay and lesbian minority. Id.
However, the foundations of the Ninth Circuit’s decision in High Tech Gays have sustained serious erosion by virtue of more recent decisions by the Supreme Court. When the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been “undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).
The linchpin of the reasoning in High Tech Gays was the precedent set by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which upheld the criminalization of private consensual homosexual conduct. In High Tech Gays, the Ninth Circuit concluded that, based on the holding in Bowers, “because homosexual conduct can . . . be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.” High Tech Gays, 895 F.2d at 571. Pursuant to Supreme Court precedent in Bowers, the Ninth Circuit agreed that “it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.” Id. at 571 n.6 (quoting Woodward v. United

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22a States, 871 F.2d 1068, 1076 (Fed. Cir. 1989)). The court concluded that, under the holding of Bowers, it would be anomalous to define the conduct of members of a class as criminal and also find that, as a class, they were deserving of strict or heightened scrutiny under the Equal Protection Clause. See id . (citing Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987)).
However, since the decision in High Tech Gays, the Supreme Court has overruled Bowers, renounced its fundamental premise, and found that “Bowers was not correct when it was decided, and it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). The Lawrence Court found that majority’s moral condemnation of the intimate practices of homosexual partners does not justify criminal prohibition and found those private consensual practices are safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Id. at 574-75. Therefore, the reasoning in High Tech Gays, that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence.
In addition, the court in High Tech Gays, in performing the analysis of the issue of whether the legislature’s classification based on homosexuality calls for heightened scrutiny, relied on the mistaken assumption that sexual orientation is merely “behavioral,” rather than the sort of deeply rooted, immutable characteristic that warrants heightened protection from discrimination. See High Tech Gays, 895 F.2d at 573-74. The court found that “[h]omosexuality is not an immutable characteristic; it is behavioral and hence fundamentally different from traits such as race, gender, or alienage, which

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23a define already existing suspect and quasi-suspect classes. The behavior of such already recognized classes is irrelevant to their identification.” Id. (internal citations omitted). The Supreme Court has since rejected this artificial distinction, noting that its more recent precedent “have declined to distinguish between status and conduct in th[e] context” of sexual orientation. See Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2990 (2010). In Lawrence, the Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” 539 U.S. at 575 (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Accordingly, the analysis of the Ninth Circuit in High Tech Gays on the appropriateness of applying heightened scrutiny to gay men and lesbians because their defining characteristic is immutable has been severely undermined by more recent and overriding precedent.
The Court finds that the outdated holding in High Tech Gays, subjecting gay men and lesbians to rational basis review, is no longer a binding precedent. See Miller, 335 F.3d at 900 (finding that where an intervening decision of a higher court is clearly irreconcilable with a Ninth Circuit decision, “district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively overruled.”).

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24a
3. The Question of Level of Scrutiny is Still Open.
The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasisuspect). See Romer, 517 U.S. at 620, 632-33 (finding that it was unnecessary to look beyond rational basis review because the state’s attempt to strip gay people of all anti-discrimination protections was “a denial of equal protection in the most literal sense” and because it “confound[ed] and defie[d]” rational basis review.”); see also, e.g., Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011) (“We do not need to decide whether heightened scrutiny might be required.”); In re Levenson, 587 F.3d at 931 (finding that although it is “likely that some form of heightened constitutional scrutiny applies . . . [, because] the denial of benefits here cannot survive even rational basis review, the least searching form of constitutional scrutiny . . . it is not necessary to determine whether or which form of heightened scrutiny is applicable to this claim.”); Perry II, 2012 WL 372713, at *17 (finding that, as in Romer, the court need not apply heightened scrutiny where the proposed legislation fails rational basis scrutiny); Dragovich, 764 F. Supp. 2d at 1189 (“Because the Court finds that Plaintiffs state a claim under the rational basis standard, the question of whether Plaintiffs are members of a protected class need not be resolved here.”). The majority of the Supreme Court in Lawrence, although it declared unconstitutional the laws infringing on the substantive liberty shared by gay people to engage in sexual intimacy, did not directly address what standard of review applies to the classification of gay and lesbian individuals. Lawrence, 539 U.S. at 558. And the Ninth Circuit in Witt v. Department of Air Force merely found, in the context of

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25a military policy where judicial deference “is at its apogee,” that the military’s policy of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir. 2008).
Because Lawrence overturned Bowers and in light of the lack of precedential value of High Tech Gays, no federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.
4. Heightened Scrutiny Should Apply.
The Court undertakes to analyze the factors required to demonstrate whether a particular class is entitled to suspect or quasi-suspect status and therefore deserving of heightened scrutiny.
a. History of discrimination against gay men and lesbians.
The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination. (See Declaration of George Chauncey at ¶¶ 6-103; OPM Opp. Br. at 6-13.) There is also no dispute that courts have found that gay men and lesbians have experienced a history of discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (acknowledging that “homosexuals have suffered a history of discrimination”); Witt, 527 F.3d at 824-25 (noting that homosexuals have “experienced a history of purposeful unequal treatment”); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009)

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26a (addressing the difficulty in denying that gay men and lesbians have experienced discrimination in the past in light of the Ninth Circuit’s ruling in High Tech Gays); Perry, 704 F. Supp. 2d at 981-82 (acknowledging extensive evidence of public and private discrimination against gay men and lesbians in California and throughout the United States); see also In re Balas, 449 B.R. 567, 576 (Bankr. C.D. Cal. 2011) (same).
b. Ability to contribute to society.
Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society. See Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ability to perform or contribute to society.”) (internal quotation marks omitted); Perry, 704 F. Supp. 2d at 1002 (concluding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”).
c. Defining or immutable characteristics.
Another consideration courts find relevant in determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny includes whether the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within the members’ control. See Lyng v. Castillo, 477 U.S. 635, 638 (1986).
Ms. Golinski presents evidence that the characteristic of sexual orientation is immutable or highly resistant to change. (See Declaration of Lisa Diamond at ¶¶ 10, 13; Declaration of Letitia Anne Peplau at ¶¶ 21, 26; Rita

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27a Lin Reply Declaration (“Lin Reply Decl.”), Ex. G.) Further, the consensus in the scientific community is that sexual orientation is an immutable characteristic. See, e.g., G.M. Herek, et al. Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176-200 (2010) (noting that in a national survey, 95 percent of gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “very little choice” about their sexual orientation); see also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”)
BLAG presents evidence demonstrating that there is some fluidity on the continuum of sexuality for some individuals who identify themselves as gay or lesbian. (See Declaration of Conor B. Dugan (“Dugan Decl.”), Ex. B at 36:14-38, Ex. 4, Ex. E at 320.) The evidence indicates that a very small minority of the gay and lesbian population may experience a small amount of choice in their sexuality. (Id.) However, the vast majority of those who self-reported as gay or lesbian did not experience attraction to the opposite sex at any time. (See Further Declaration of Letitia Anne Peplau at ¶ 6 (“data show that only 1/2 of 1% of the male participants and 1.3% of the female participants shifted from only opposite sex attraction to major attraction to the same sex or vice versa.”)).
However, regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchange-

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28a able, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity. “Sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing with Hernandez-Montiel and finding that homosexuality is “a fundamental aspect of . . . human identity”); Watkins, 875 F.2d at 726 (Norris, J., concurring) (finding that the prong of suspectness inquiry is satisfied when the identifying trait is “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it]”); In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”) The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it. Therefore, this factor weighs in favor of the application of heightened scrutiny.6
6 In addition, immutability is not an absolute prerequisite to heightened scrutiny. The Supreme Court has granted suspect class status to groups whose distinguishing characteristic is not immutable. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting immutability requirements in treating group of resident aliens as suspect class despite their ability to opt out of class voluntarily); see also Miller v. Albright, 523 U.S. 420, 431 (1998) (recognizing that because a child born out of

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29a
d. Minority status and political powerlessness.
The final consideration employed by courts to determine whether a subject group deserves heightened constitutional scrutiny is whether the subject group is “a minority or politically powerless.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973) (concluding that a class comprising poor families exhibits none of the “traditional indicia of suspectness” because class is not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”) This factor examines relative political power and seeks to answer the question whether the “discrimination is unlikely to be soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440.7
wedlock may be “legitimated” by father, strictly speaking illegitimacy is not an immutable characteristic); see also New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (finding religious identification and alienage, despite being changeable, to constitute suspect classes).
7 In High Tech Gays, the Ninth Circuit briefly addressed the factor of political powerlessness: “legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do ‘attract the attention of lawmakers,’ as evidenced by such legislation.” 895 F.2d at 574 (citing City of Cleburne, 473 U.S. at 445). However, the very circumstance of gay men and lesbians being required to defend their interests against legislative action is a reflection of relative political weakness. (Declaration of Gary Segura (“Segura Decl.”) at ¶ 14.) In addition, the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness. See Rodriguez, 411 U.S. at 28; City of

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30a There is no dispute in the record that gay men and lesbians are a minority of the population in the United States. (See Dugan Decl., Ex. A at 13:12-14, Ex. B at 19:2-7.) The only issue is whether the minority is politically vulnerable or lacking in power. The Court has reviewed the evidence submitted by the parties for consideration on this factor. BLAG argues that the current Administration’s reversal of position with regard to defending DOMA in various courts nationwide is evidence that gay and lesbian individuals have achieved political power. BLAG contends that the decision followed President Obama’s receipt of a letter from the Human Rights Campaign seeking to change the Administration’s position. (BLAG Opp. Br. at 12.) However, this contention is not supported by the evidence in the record. First, this letter was sent nearly two years prior to the announcement of the Administration’s current opinion. (Lin Reply Decl., Ex. H at 166:16-167:13.) Second, the Department of Justice functions under an independent obligation to assess the constitutionality of a statute it has been tasked to defend. By its own terms, the announcement by the Department of Justice was based not on a political calculation, but rather was an independent assessment of the constitutionality of DOMA. (See NSA, Ex. 1 at 1-2.) The contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.
Cleburne, 473 U.S. at 445.

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31a BLAG also argues that a “spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” (BLAG Opp. Br. at 12.) BLAG lists the nomination of four openly-gay judges, the laws in several states legalizing gay marriage, and the campaign against Proposition 8 in California which garnered significant funding from proponents of same-sex marriage. (Id. at 12-15.) The recent articles BLAG cites are exceptions and not the rule. While President Obama nominated four openly-gay judges, there are literally hundreds of federal judges nationwide. Only a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions. Thirty states have passed constitutional amendments banning same-sex marriage. (See OPM Opp. Br. at 15, citing National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www. ncsl.org/default.aspx?tabid_16430 (last updated February 13, 2012)). In contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states. See Loving, 388 U.S. at 6. Moreover, there is no federal anti-discrimination legislation and no protection in most states from sexual orientation discrimination. (See OPM Opp. Br. at 6-12.) Finally, while the campaign against Proposition 8 may have raised significant funds, the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights. Placed in context, BLAG’s evidence does not create a question of fact.

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32a Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.” City of Cleburne, 473 U.S. at 440. Even BLAG, in similar litigation, has admitted that “gay men and lesbians often must rely on judicial decisions to secure equal rights.” (Lin Reply Decl., Exs. C and D at ¶ 32.) Ms. Golinski proffers the undisputed and extensive expert testimony of Gary Segura for the proposition that gay men and lesbians lack a meaningful degree of political power. (See Segura Decl. at ¶¶ 9-85.) In sum, the basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals. (Id. at ¶ 28.) Ms. Golinski also proffers the letter from the Attorney General to Congress regarding DOMA and the Department of Justice’s determination that it would no longer provide a defense of a statute which it considered to be unconstitutional. (See NSA, Ex. 2.) In the letter, the Attorney General, speaking on behalf of the Executive, notes that “the adoption of the laws like those at issue in Romer and Lawrence, the longstanding ban on gay men and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and ‘ability to attract the [favorable] attention of the lawmakers.’ ” (Id. at 2, citing City of Cleburne, 473 U.S. at 445.)

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33a The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power. In 1985, in their dissent from a petition for writ of certiorari, Justices Brennan and Marshall found that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School District, 470 U.S. 1009, 1014 (1985). The Court agrees and finds that, as a class, gay men and lesbians are a minority and have relatively limited political power to attract the favorable attention of lawmakers. See City of Cleburne, 473 U.S. at 445. Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457 U.S. at 216 n.14; Murgia, 427 U.S. at 321. Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny. See also In re Levenson, 587 F.3d at 931 (holding that “some form of heightened constitutional scrutiny applies”); Witt, 527 F.3d at 824-25 (Canby, J., concurring in part and dissenting in part) (“classifications against homosexuals are suspect in the equal protection sense” as gay and lesbian individuals have “experienced a history of purposeful unequal treatment [and] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” and “they also exhibit obvious,

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34a immutable, or distinguishing characteristics that define them as a discrete group; and they are a minority.”). In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority. See id . at 825.
5. Application of Heightened Scrutiny to Justifications Proffered for DOMA.
Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.” Clark, 486 U.S. at 461. Moreover, under any form of heightened scrutiny, the statute may only be defended by reference to the actual legislative bases advanced to legitimate the statute or the “actual [governmental] purpose, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996). The Court notes that the “historical background of the decision” to enact legislation and the “specific sequence of events leading up to the challenged decision” may shed light on the decisionmakers’ purposes. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). Here, the legislative history is replete with expressed animus toward gay men and lesbians.
The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” H.R. Rep. No. 104-664, at 16 (footnote omitted). In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they

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35a express their disapprobation through the law.” 142 Cong. Rec. H7480 (daily ed. July 12, 1996).
In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . At the heart of this debate is the moral and spiritual survival of this Nation.” 142 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across the country.”). The House Report on the pending DOMA bill stated: “Civil laws that permit only heterosexual marriage reflect and honor a col-

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36a lective moral judgment about human sexuality. This judgment entails [a] moral disapproval of homosexuality.” H.R. Rep. 104-664, at 15-16. The Report further stated that “same-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate.” Id. at 16.
Despite the expressed animus against gay men and lesbians within the legislative history of DOMA, Congress also specifically identified four governmental interests to be advanced by the statute: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. See H.R. Rep. No. 104-664, at 12-18.
a. Responsible procreation and child-rearing.
The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing.
Ms. Golinski presents evidence that it is “beyond scientific dispute” that same-sex parents are equally capable at parenting as opposite-sex parents. (See Declaration of Michael Lamb (“Lamb Decl.”) at ¶ 14.) The evidence presented by Professor Lamb demonstrates that parents’ genders are irrelevant to children’s developmental outcomes. (See id . at ¶¶ 28, 38; Reply Declaration of Michael Lamb (“Lamb Reply Decl.”) at ¶¶ 8, 19, 28.) More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by samesex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by

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37a opposite-sex parents. (See Lamb Decl. at ¶¶ 29-32.) “There is . . . no empirical support for the notion that the presence of both male and female role models in the home promotes children’s adjustment or well-being.” (Id. at ¶ 14.) “Since 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.” Gill, 699 F. Supp. 2d at 388; see also Perry, 704 F. Supp. 2d at 1000 (“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”); Varnum, 763 N.W.2d at 899 n.26 (“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”).
BLAG argues that there are flaws in the studies proffered by Ms. Golinski’s expert, Professor Lamb, comparing gay or lesbian parents to opposite-sex parents, based on methodological challenges. The first alleged flaw is that there have been fewer studies of gay male parents than there have been of lesbian family research. (See Lamb Reply Decl. at ¶ 7; see also Lin Reply Decl., Ex. K at 76:6-17.) Whether this is the case does not impact the validity of the studies performed. (See Lamb Reply Decl. at ¶ 8.) The second flaw as argued by BLAG is that there are fewer studies on adolescents than on younger children. However, it remains

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38a undisputed that “there are several . . . studies that have looked at adolescent offspring living with same-sex parents” and those studies have “uniformly reported positive outcomes.” (See id . at ¶¶ 9-10; see also Lin Reply Decl., Ex. K at 82:15-83:21.) The third criticism is that Professor Lamb indicates the need for further studies. This does not impact the validity of the studies already performed. (See Lamb Reply Decl. at ¶ 12.) The Court finds that these criticisms of the studies relied upon by Professor Lamb do not alter their validity. “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. The Court finds BLAG’s critique does not create an issue of fact.
Further, BLAG cites three sources for the proposition that same-sex parenting is inferior to opposite-sex parenting. One is an article from Slate.com in which the author contends that the existing science is methodologically flawed and ideologically skewed. (See Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate (Mar. 12, 2004), available at http://www.slate.com/id/2097048/.) This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular online magazine without peer review. (See Lamb Reply Decl. at ¶ 15.) Another reference by BLAG is an article criticizing the sampling size in the studies relied upon by Professor Lamb. As Professor Lamb explains, such sampling is typical of psychological research and a number of the studies he relied upon do use representative sampling. (See id . at ¶ 16.) The last source is an unpublished piece by Professor Loren

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39a Marks in which he criticizes a brief issued by the American Psychological Association in 2005 concluding that social science research indicates that gay parents provide a home environment equally likely to support children’s psychological and social growth. (See BLAG Opp. Br., Ex. 2.) The critique is neither a study nor published in a peer-reviewed journal and its questionable analysis is based on outdated and selectively-chosen data. (See Lamb Reply Decl. at ¶¶ 20-27.) The piece also ignores many of the studies relied upon by Professor Lamb regarding the conclusion that parents’ sexual orientation is unrelated to their children’s adjustment. (See id . at ¶¶ 21-27.) Having reviewed the evidence presented, the Court concludes that all three publications merely criticize the studies relied upon Professor Lamb. As stated above, the criticism merely goes to the weight of Ms. Golinski’s evidence. The publications do not present any independent affirmative evidence necessary to create a genuine issue of disputed fact regarding whether samesex married couples function as responsible parents.
Furthermore, to the extent Congress was interested merely in encouraging responsible procreation and child-rearing by opposite-sex married couples, a desire to encourage opposite-sex couples to procreate and raise their own children well would not provide a legitimate reason for denying federal recognition of same-sex marriages. The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them “ ‘the immeasurable advantages that flow from the assurance of a stable family structure,’ when afforded equal recognition under federal law.” Gill, 699 F. Supp. 2d at 389 (quoting Goodridge v. Department of

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40a Public Health, 440 Mass. 309, 335 (2003)). It is undisputed that same-sex parents can and do have and adopt children. The denial of federal recognition of valid same-sex marriages under state law does not alter parental rights under state law. Rather, the passage of DOMA only serves to undermine providing a stable environment for children of same-sex married couples whose children would otherwise be raised in a household bestowed with all of the federal benefits of marriage, including financial support and social recognition. (See Lamb Decl. at ¶ 42.)
Furthermore, an interest in promoting procreation within marriage cannot provide a legitimate reason to exclude same-sex marriages from federal recognition. The ability to procreate cannot and has never been a precondition to marriage. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (stating “what justification could there possibly be for denying the benefits of marriage to homosexual couples . . . [s]urely not the encouragement of procreation, since the sterile and the elderly are allowed to marry”). “While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Dragovich, 764 F. Supp. 2d at 1190 (citing Goodridge, 440 Mass. at 332). The federal government has never considered withdrawing its recognition of marriage based on an ability or inability to procreate. See id .; see also Gill, 699 F. Supp. 2d at 389. Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does

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41a nothing to encourage or discourage opposite-sex couples from having children within marriage.
Accordingly, the Court finds that the first proffered reason for the passage of DOMA—to encourage responsible procreation and child-rearing—does not provide a justification that is substantially related to an important governmental objective.
b. Nurturing the institution of traditional, opposite-sex marriage.
The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage. Tradition alone, however, cannot form an adequate justification for a law. See Williams v. Illinois, 399 U.S. 235, 239 (1970); Romer, 517 U.S. at 635; Lawrence, 539 U.S. at 579. The “ancient lineage” of a classification does not render it legitimate. Heller, 509 U.S. at 327. Instead, the government must have an interest separate and apart from the fact of tradition itself.
In addition, the ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA. DOMA does nothing to encourage same-sex married individuals to marry members of the opposite sex because they are already married to a member of the same sex. Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. See Gill, 699 F. Supp. 2d at 389; see also In re Levenson, 587 F.3d at 932 (“gays and lesbians will not be encouraged to enter into marriages with members of the opposite sex by the government’s denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from

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42a entering into same-sex marriages; so, the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage.”); see also Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”).
Accordingly, the Court does not find that the second proffered reason for the passage of DOMA—to defend and nurture the institution of traditional, opposite-sex marriage—provides a justification that is substantially related to an important governmental objective.
c. Defending traditional notions of morality.
The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny. “The animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in the Congressional record.” See Dragovich, 764 F. Supp. 2d at 1190. “[M]oral condemnation of homosexuality [does not] provide the requisite justification for the DOMA’s section three. The ‘bare desire to harm a politically unpopular group’ is not a legitimate [governmental] interest.” Id. (quoting Romer, 517 U.S. at 634-35). The condemnation of homosexuality as immoral
has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which

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43a they aspire and which thus determine the course of their lives. . . . The issue is whether the majority may use the power of the [government] to enforce these views on the whole society through operation of the . . . law. Lawrence, 539 U.S. at 571. The Court concludes it can not. The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Casey, 505 U.S. at 850. “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’ ” Lawrence, 539 U.S. at 582 (O’Connor, J., concurring) (quoting Romer, 517 U.S. at 633). “[T]he fact that the governing majority . . . has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence, 539 U.S. at 577-78. Accordingly, the Court does not find that the third proffered reason for the passage of DOMA—to defend traditional notions of morality—provides a justification that is substantially related to an important governmental objective.
d. Preserving scarce government resources.
The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to

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44a same-sex married couples would adversely affect the government fisc. In addition, the preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 at 227, 229. “[A]lhough efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency.’ ” Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (citing Stanley v. Illinois, 405 U.S. 645, 656 (1972)). Under heightened scrutiny, convenience and economic efficiency in the administration of governmental programs do not legitimize differential treatment. See id . at 690-91.
Accordingly, the Court does not find that the fourth proffered reason for the passage of DOMA—to preserve scarce government resources—provides a justification that is substantially related to an important governmental objective.
The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.
D. In the Alternative, DOMA Fails Under Rational Basis Review.
Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.
1. Standards for Rational Basis Scrutiny.
Where a law neither burdens a fundamental right nor targets a suspect class, a court shall uphold the legisla-

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45a tive classification so long as it bears a rational relation to some legitimate end. Heller, 509 U.S. at 319-320. Under the rational basis standard of review, legislative enactments are accorded a strong presumption of validity. Id. Courts “are compelled under rational-basis review to accept a legislature’s generalizations even where there is an imperfect fit between means and ends.” Id. (internal citations omitted). Indeed, a court applying rational basis review may “go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.” Gill, 699 F. Supp. 2d at 387 (citing Shaw v. Oregon Public Employees’ Retirement Board, 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted)). “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rational basis review is “a paradigm of judicial restraint” and “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. at 313-14. “Nor does it authorize ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” Heller, 509 U.S. at 319 (quoting Dukes, 427 U.S. at 303).
“ ‘[T]he burden of establishing the unconstitutionality of a statute rests on him who assails it.’ ” Baker v. Carr, 369 U.S. 186, 266 (1962) (quoting Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935)). The bur-

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46a den is to “ ‘negative every conceivable basis which might support it,’ whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320-21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). “A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. at 321 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). “The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” Id. (citing Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913)). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Id. (citing McGowan v. Maryland, 366 U.S. 420, 426 (1961)).
However, rational review is not “toothless.” Mathews v. de Castro, 429 U.S. 181, 185 (1976). “A statutory classification fails rational-basis review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’ s objective.’ ” Heller, 509 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)). Rational basis review requires that the legislation not be enacted for arbitrary or improper purposes. In order for a law to be legitimate, it must be “properly cognizable” by the government asserting it and “relevant to interests” it “has the authority to implement.” City of Cleburne, 473 U.S. at 441. The law must bear a logical relationship to the purpose it purports to advance. Romer, 517 U.S. at 632-33; see also Gill, 699 F. Supp. 2d at 387. “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.”

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47a Gill, 699 F. Supp. 2d at 387 (quoting Romer, 517 U.S. at 633). Lastly, the justification for the law may not rely on factual assumptions that exceed the bounds of rational speculation. Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001) (citing Heller, 509 U.S. at 320 (holding that speculation, while permissible, must be “rational”)).
When applying rational basis review to a classification that adversely affects an unpopular group, courts apply a “more searching” rational basis review. Diaz, 656 F.3d at 1012. With these protections, courts may thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633 (citing Railroad Retirement Board v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”)).
2. Application of Rational Basis Review to Justifications Proffered by Congress.
The Court has already addressed the four interests proffered by Congress during the passage of DOMA and found them not to be substantially related to an important governmental objective. Similarly, under the rational basis review, the Court finds that none of Congress’ proffered justifications constitute a rational relation in furtherance of some legitimate governmental end. See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319-320).
Specifically, the Court finds that Congress’ justification of promoting traditional notions of morality does not satisfy rational basis scrutiny. See Lawrence, 539

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48a U.S. at 582 (holding that “[m]oral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”) Also, if the denial of benefits is designed to defend traditional notions of morality by discouraging same-sex marriage, “it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the ‘bare desire to harm’ same-sex couples.” In re Levenson, 587 F.3d at 932 (emphasis in original). This is forbidden by the Constitution. See Romer, 517 U.S. at 634-35. “Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather than in a lawfully-recognized ‘state of connubial bliss’ that encourages a long-enduring permanent relationship that, in turn, serves as the basis of a state-recognized family.” In re Levenson, 587 F.3d at 932. The promotion of morality is not a cognizable governmental interest furthered by the denial of federal benefits and protections.
Similarly, the Court does not find the justification of preserving the government fisc satisfies rational basis review. See Lyng v. International Union, 485 U.S. 360, 376-77 (1988) (holding that previous cases make “clear that something more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.”). Ostensible savings to the government fisc that depends upon “distinguishing between homosexual and heterosexual [couples], similarly situated, . . . cannot survive rational basis review.” See Diaz, 656 F.3d at 1014.8
8 During oral argument, counsel for BLAG argued that another possible justification for DOMA, somewhat related to protection of the

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49a
a. Responsible procreation and child-rearing.
In arguing its defense of DOMA, BLAG, for the most part, eschews the justifications proffered by Congress for the legislation. However, the group does reiterate the legislative justifications of encouraging responsible procreation and child-rearing and the government’s interest in defending and nurturing the institution of traditional, heterosexual marriage.
The Court does not find the justification of encouraging responsible procreation and child-rearing survives rational basis scrutiny. Even if the Court were to accept as true, which it does not, that opposite-sex parenting is somehow superior to same-sex parenting, DOMA is not rationally related to this alleged governmental interest.
Under rational basis review, although the fit between the classification and the stated government interest need not be perfect, the classification must be “narrow enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].” Romer, 517 U.S. at 632-33. Rational basis review invalidates a measure
public fisc, is “to rationally maintain bargains that were decided upon by previous Congresses. . . . There were bargains made, and there were calculus [sic] made in terms of . . . what benefits are we going to give, what burdens are we going to put on people.” (Transcript at 59.) The decision of where and how to protect the government fisc and to protect the bargains struck by previous Congresses does not independently constitute a rational basis upon which to differentiate among classes of citizens. See Diaz, 656 F.3d at 1014; see also Plyler, 457 U.S. at 227, 229 (holding that preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program). There must be some rational basis upon which to decide not to expend public resources for a particular group.

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50a
whose “sheer breadth” is “discontinuous with the reasons offered for it.” Id. at 632, 635 (rejecting justifications where “[t]he breadth of the [measure] is so far removed from these particular justifications that we find it impossible to credit them”); see also Eisenstadt v. Baird, 405 U.S. 438, 449 (1972) (rejecting justification of law discriminating between married and unmarried individuals in access to contraceptives as “so riddled with exceptions” that the interest claimed by the government “cannot reasonably be regarded as its aim”).
DOMA has no effect on who may become a parent under federal or state law. Moreover, whether a samesex couple is entitled to marriage benefits has no rational relation to that couple’s or an opposite-sex couple’s ability to procreate. Significantly, to reiterate, the ability to procreate has never been a precondition to marriage in any jurisdiction. See Lawrence, 539 U.S. at 605 (Scalia, J. dissenting).9 Here, there is simply no connection between the ability (or capacity) to become a parent and the designation of federal entitlements based on a definition of marriage that excludes legally married couples who are capable of becoming parents.
9 During oral argument, counsel for BLAG argued that an additional reason for the passage of DOMA was the fact that opposite-sex married couples could “have accidental pregnancies” or “can make babies spontaneously.” (Transcript at 63-64.) BLAG did not, however, articulate how the fact that opposite-sex couples can have accidental pregnancies constitutes an interest supporting the passage of DOMA. Although the generation of children may be biologically more spontaneous with opposite-sex couples, married or unmarried, the Court remains perplexed how the uniformly deliberate decision of same-sex married couples to become parents can be perceived as a justification against supporting their procreation and child-rearing efforts.

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51a Denying federal benefits to same-sex married couples has no rational effect on the procreation and childrearing practices of opposite-sex married (or unmarried) couples. See Perry II, 2012, WL 372713, at *21 (“There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging . . . opposite-sex couples to procreate more responsibly.”) To the extent some people may have a bias in favor of preferring biological parents over other couples, there is no such recognition of this distinction under federal or state law. See id . There has been no showing that DOMA alters any state or federal law governing childbearing, procreation or family structure. Given the state of the law, the rationale of promoting responsible child-rearing finds no “ ‘footing in the realities of the subject addressed by the legislation,’ and thus cannot be credited as rational.” Perry II, 2012 WL 372713, at *20 (citing Heller, 509 U.S. at 321). Accordingly, the Court finds that Congress’ stated justification of encouraging responsible procreation and child-rearing bears no rational relationship to the classification which burdens same-sex married couples.
b. Nurturing the institution of traditional, opposite-sex marriage.
BLAG contends that the institution of opposite-sex marriage is deeply rooted in American law, embedded in history and tradition, and has been defined both by Black’s Law Dictionary and the Bible. (BLAG Motion to Dismiss at 23-24, citing Marsh v. Chambers, 463 U.S. 783, 792 (1983) (holding that traditional marriage “is deeply embedded in the history and tradition of this country” and “has become part of the fabric of our soci-

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52a ety”) and Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (holding that the “institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”)).
Again, the argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification. Simply stating what has always been does not address the reasons for it. The mere fact that prior law, history, tradition, the dictionary and the Bible have defined a term does not give that definition a rational basis, it merely states what has been. Tradition, standing alone, does not provide a rational basis for the law. Williams, 399 U.S. at 239. Simply, the “ancient lineage” of the law does not render it rational. See Heller, 509 U.S. at 327.
BLAG argues, but does not explain how denying marriage benefits only to same-sex couples will somehow make marriage between opposite-sex couples better. The proffered justification may derive from strongly-held religious or fundamentally traditional beliefs, but still does not provide a legally recognizable rational basis for sustaining a law that actively discriminates against legally married couples. The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages. See Perry II, 2012 WL 372713, at *23 (holding that “the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality”); see also Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of oppo-

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53a site-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”); In re Levenson, 587 F.3d at 932 (this governmental interest “is largely irrelevant to the rational basis analysis here because the same-sex couples who seek the benefits are already married. Also, gays and lesbians will not be encouraged to enter into marriages with members of the opposite sex by the government’s denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from entering into same-sex marriages; so the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage.”).
Accordingly, the Court finds that Congress’ stated justification of nurturing the institution of traditional, opposite-sex marriage bears no rational relationship to the classification which burdens same-sex married couples.
3. Application of Rational Basis Review to Alternative Justifications Proffered by BLAG.
BLAG does not rely exclusively on the stated legislative justifications advanced by Congress during its passage of DOMA. A court may “hypothesize the motivations of the . . . legislature to find a legitimate objective promoted by the provision under attack.” Shaw, 887 F.2d at 948-49 (internal quotation marks and citation omitted). “[I]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Beach Communications, 508 U.S. at 313. In this regard, BLAG has proffered several additional hypothetical rational bases for passing DOMA.

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54a
a. Congressional caution in defining a legislative term and maintaining the status quo.
BLAG contends that Congress could have had a rational basis for the passage of DOMA by preserving the status quo in the federal definition of marriage while waiting for the states to “tinker with the substantive centuries-old definition of marriage.” (BLAG Opp. Br. on Motion for Summary Judgment at 22.) To the extent this argument is premised upon preserving a traditional definition of marriage for its own sake, the Court has already rejected this argument. As the court found in Gill, “[s]taying the course is not an end in and of itself, but rather a means to an end.” Gill, 699 F. Supp. 2d at 390-94. The long history of discrimination against gay men and lesbians does not provide a rational basis for continuing it.
Moreover, DOMA does not preserve the status quo. The passage of DOMA marks a stark departure from tradition and a blatant disregard of the well-accepted concept of federalism in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392 (finding that DOMA “mark[ed] the first time the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter”); see also Dragovich, 764 F. Supp. 2d at 1189 (“[S]ection three of DOMA was a preemptive strike to bar federal legal recognition of same-sex marriages should certain states decide to allow them, rather than a law that furthered the status quo, which gave the states authority to define marriage for themselves.”).
The status quo prior to the passage of DOMA was federal recognition of the individual states’ authority to

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55a define marriage. “The whole subject of the domestic relations . . . belongs to the laws of the States and not to the laws of the United States.” Elk Grove Unified School District v. Newdow, 542 U.S. 1, 12 (2004) (citation omitted); see also Sosna v. Iowa, 419 U.S. 393, 404 (1975) (holding that “domestic relations” have “long been regarded as a virtually exclusive province of the States” and “[t]he State . . . has absolute right” to regulate marriage) (citations omitted); Ankenbrandt v. Richards, 504 U.S. 689, 703, 716 (1992) (“declarations of status, e.g., marriage, annulment, divorce, custody, and paternity,” lie at the “core” of domestic relations law reserved to the states) (Blackmun, J., concurring).
Prior to the enactment of DOMA, the federal government had not attempted to craft its own federal definition of marriage, “notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.” Gill, 699 F. Supp. 2d at 392. Congress accepted without revision the patchwork of different state marriage definitions regarding, for example, age requirements or marriage among related persons. (See e.g., Declaration of Nancy Cott (“Cott Decl.”) at ¶¶ 26, 51-52, 56-57.) The federal government has continued to defer to the states during unprecedented, hotlycontested shifts in state marriage law, especially in the area of interracial marriage. (Id. at ¶¶ 57.) The strong tradition of federalism mandated that the federal government refrain from inserting itself in the business of domestic relations.10
10 BLAG contends that Congress has previously enacted laws which create unique federal definitions of marriage, for instance in the area federal tax regulations, Social Security, immigration or federal benefits.

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56a
The Court finds that the passage of DOMA, rather than maintaining the status quo in the arena of domestic relations, stands in stark contrast to it. Accordingly, the Court finds that Congressional caution in defining a legislative term and maintaining the status quo does not constitute a rational basis.
b. Congressional caution in area of social divisiveness.
BLAG also contends that Congress should remain cautious, especially in an area of so much social divisiveness, by holding the purported federal definition of marriage steady while waiting to see how the states tinker with new definitions. The Court finds the contention similar to arguments that were advanced in support of antimiscegenation laws. Proponents similarly argued that the long-standing tradition of the separation of the
However, in each instance, the federal government accepted the state definitions of marriage and merely superimposed further requirements for falling within the federal entitlement statute. See, e.g., 42 U.S.C. § 416 (requiring marriage of at least one year to obtain certain Social Security benefits); 8 U.S.C. § 1186a(b)(1) (discrediting marriages entered into merely to obtain immigration status). These federal requirements do not purport to redefine or create a federal definition of marriage, but rather impose additional criteria to further particular legislative goals.
In addition, BLAG cites examples in which Congress legislated in the area of domestic relations, such as when it banned polygamy in the Utah Territory, when it promoted and supported marriages of former slaves after the Civil War, and legislation in the context of treatment of Indians tribes. However, in each of those unique historical instances, Congress was acting in the role of the state in the absence of a secure state government. (See, e.g., Cott Decl. at ¶¶ 75-79.) DOMA marks a radical departure from the tradition of federalism in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392.

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57a races provided justification for prohibiting interracial marriage. The lower court in Loving found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will, flaunted a long history of tradition and, at its core, endangered the institution of marriage. See id . However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee. Id . at 11-12.
More recently, in Romer, the Supreme Court addressed a proposed amendment to the Colorado state constitution that would prohibit all legislative, executive, or judicial action designed to protect discrimination against homosexuals. One of the arguments in support of the state amendment was that it was an attempt to withdraw “a deeply divisive social and political issue from elected representatives and place its resolution squarely in the hands of the people.” (See Brief for Petitioner filed April 21, 1995 in Romer v. Evans, No. 94-1039 (Supreme Court), 1995 WL 17008429, at *10) Proponents contended that it was important to ensure that “the deeply divisive issue of homosexuality does not serve to seriously fragment Colorado’s body politic.” (See id ., at *47) Proponents argued that it required some leeway in this socially divisive atmosphere to handle the “sensitive and core political choices” in matters regarding discrimination against homosexuals calmly

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58a over time. (Id .) The Supreme Court, however, flatly rejected this argument as providing a rational basis and found that the proposed amendment to the Colorado state constitution was unconstitutional. Romer, 517 U.S. at 620.
Here, too, this Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law.
Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.
c. Consistency.
BLAG also contends that Congress could have rationally sought to base eligibility for federal benefits on a traditional definition of marriage in order “to avoid the arbitrariness and inconsistency in such eligibility . . . and not depend[] on the vagaries of state law.” (BLAG Motion to Dismiss at 24.) However, as explained above, in all of the years preceding the passage of DOMA, Congress relied on the various states’ definitions of marriage without incident. All couples married under state law were entitled to federal benefits, even if the particulars of the states’ definitions were variable. The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are entitled to federal recognition and which are not.

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59a Accordingly, the Court finds that consistency does not constitute a rational basis.
d. Any other possible basis.
The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further. See Diaz, 656 F.3d at 1015.
CONCLUSION
For the foregoing reasons, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss.
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

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60a Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).
This case was presented by an employee of the judicial branch against the executive branch, which ultimately determined it could not legitimately support the law. The law was then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and, where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. . . . it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Nominee).
In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.
Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan. The Clerk is directed to enter judgment in favor of Ms.

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61a Golinski and against defendants the Office of Personnel Management and its director John Berry as set out herein pursuant to Federal Rule of Civil Procedure 58.
IT IS SO ORDERED. Dated: Feb. 22, 2012
/s/ JEFFREY S. WHITE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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62a
APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-00257 JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
Filed: Feb. 22, 2012
JUDGMENT
Pursuant to the Court’s Order denying IntervenorDefendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”)’s motion to dismiss and motion to strike, granting the motion to dismiss filed by Defendants the United States Office of Personnel Management and John Berry, its director, and granting Plaintiff Karen Golinski’s motion for summary judgment, it is HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff and against Defendants.

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63a IT IS SO ORDERED. Dated: Feb. 22, 2012
/s/ JEFFREY S. WHITE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

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64a
APPENDIX C UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
No. C 3:10-00257-JSW KAREN GOLINSKI, PLAINTIFF
v. THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S.
HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: Feb. 28, 2012
NOTICE OF APPEAL OF DEFENDANTS
TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:
NOTICE IS HEREBY GIVEN that all Defendants hereby appeal to the United States Court of Appeals for the Ninth Circuit from the Judgment dated February

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65a 22, 2012 [ECF No. 187] and the underlying Opinion and Order dated February 22, 2012 [ECF No. 186].
Dated this 28th day of February, 2012. Dated: Feb. 28, 2012
Respectfully Submitted, TONY WEST Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ CHRISTOPHER R. HALL CHRISTOPHER R. HALL D.C. Bar No. 468827 Senior Counsel U.S. Department of Justice Civil Division, Federal Programs
Branch P.O. Box 883 Washington, D.C. 20044 (202) 514-4778 (telephone) (202) 616-8470 (fax) Attorneys for Defendants

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66a
APPENDIX D UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case No. 3:10-cv-0257-JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, ET AL., DEFENDANTS and
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: Feb. 24, 2012
INTERVENOR-DEFENDANT’S NOTICE OF APPEAL
Notice is hereby given that Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the “House”), through counsel, respectfully appeals to the United States Court of Appeals for the Ninth Circuit the District Court’s February 22, 2012 Order (ECF No. 186) and final Judgment (ECF No. 187), both insofar as they grant Plaintiff’s motion for summary judgment (ECF No. 142) and deny the House’s motion to dismiss (ECF No. 119).

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67a The statutory basis for this appeal is 28 U.S.C. § 1291. The House hereby notifies the Clerk of Court pursuant to Ninth Circuit Rule 3-1 that it is exempt from submitting the filing fee for this appeal. A copy of the Order and a copy of the final Judgment are attached hereto as Exhibits A and B, respectively.
Respectfully submitted, BANCROFT PLLC /s/ H. CHRISTOPHER BARTOLOMUCCI H. CHRISTOPHER BARTOLOMUCCI1 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives2 Feb. 24, 2012
1 Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory H. Christopher Bartolomucci.
2 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this notice of appeal.

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68a
APPENDIX E
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12-15388 D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco KAREN GOLINSKI, PLAINTIFF-APPELLEE
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
and BIPARTISAN LEGAL ADVISORY GROUP OF THE
U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT-APPELLANT
No. 12-15409 D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco KAREN GOLINSKI, PLAINTIFF-APPELLEE
v.

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69a UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS-APPELLANTS and
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: May 22, 2012
ORDER
Before: THOMAS, Circuit Judge and En Banc Coordinator.
Pursuant to G.O. 5.2, the petition for initial hearing en banc was circulated to the court. A time was established by which any judge could request a vote on the petition. No judge requested a vote within the time period. Therefore, the petition for initial hearing en banc is denied.
Chief Judge Kozinski and Judge Reinhardt did not participate in the consideration of this matter.
The order filed April 11, 2012, remains in effect. The Clerk shall calendar these consolidated appeals for argument before a three-judge panel during the week of September 10-14, 2012, in San Francisco.

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70a
APPENDIX F
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

 
 No. 12-16
In the Supreme Court of the United States
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF CONTENTS Page
A. Federal petitioners, as defendants against which judgment was entered, have standing to seek certiorari ..................................................................................2
B. Certiorari before judgment is warranted here if necessary to ensure timely and definitive resolution of the question presented ......................................................3
C. Granting this petition would not unnecessarily complicate proceedings before this Court...........................4
TABLE OF AUTHORITIES Cases:
Department of Health & Human Servs. v. Florida, 132 S. Ct. 840 (2011).................................................................5
INS v. Chadha, 462 U.S. 919 (1983)............................................2 Kinsella v. Krueger, 354 U.S. 1 (1957) .................................. 2, 3 Massachusetts v. Department of Health & Human
Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012) and 12-97 (filed July 20, 2012) ......... 1, 5
Constitution and statute: U.S. Const. Amend. V .............................................................. 1, 4 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, § 3, 110 Stat. 2419, (1 U.S.C. 7) ........................................................... 1, 2, 3, 4, 5, 6
(I)

In the Supreme Court of the United States
No. 12-16 OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
Respondent Karen Golinski agrees that the Court should grant the petition for a writ of certiorari before judgment, and the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) agrees that the question presented by this case— whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to persons of the same sex who are legally married under state law—warrants this Court’s immediate review. BLAG nevertheless opposes this petition on three grounds: (1) the federal petitioners might lack appellate standing to seek this Court’s review; (2) certiorari before judgment is not warranted because the petitions for a writ of certiorari in Massachusetts v. Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending,
(1)

2
Nos. 12-13 (filed June 29, 2012) and 12-15 (filed July 3, 2012), present the same question; and (3) granting this petition would unnecessarily complicate proceedings before the Court. None of those asserted grounds warrants denial of the present petition. And even BLAG has now endorsed this petition as “the best of the remaining vehicles” after Massachusetts. Nos. 12-63 and 12-307 BLAG Supp. Br. 12.
A. Federal Petitioners, As Defendants Against Which Judgment Was Entered, Have Standing To Seek Certiorari
As explained more fully in the government’s reply brief in No. 12-15 (at 2-6), this Court’s precedents make clear that petitioners, as a federal entity and official charged with Section 3’s enforcement and against which judgment was entered below (No. 12-16 Pet. App. 62a), are proper parties to invoke this Court’s jurisdiction to review the judgment in this case. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may seek review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”). BLAG’s appellate-standing objection thus lacks merit.
BLAG’s objection not only is foreclosed by this Court’s decision in Chadha, but BLAG itself concedes (No. 12-16 Br. in Opp. 15, 20; No. 12-307 Supp. Br. 9) that its objection may have even less force in the context of a petition for a writ of certiorari before judgment. In Kinsella v. Krueger, 354 U.S. 1 (1957), for example, the Court reviewed the district court’s denial of a writ of habeas corpus based on a petition for a writ of certiorari before judgment filed by the government, the prevailing

3
party in the district court. See id. at 5. Although the district court’s ruling was favorable, the government filed the certiorari petition in order to supply an alternative vehicle to Reid v. Covert, which was then pending on appeal, for addressing Congress’s power to authorize the trial by court-martial of civilians accompanying the Armed Forces overseas. Gov’t Pet. 5-7, Kinsella, supra (No. 713). The government’s petition stated that it was “clear, of course, that the party prevailing in the district court may seek certiorari before judgment.” Id. at 6 n.*. The Court granted the petition, consolidated the two cases, and decided them together. While the Court did not expressly address whether the government had properly invoked this Court’s jurisdiction in Kinsella, 354 U.S. at 5, the government’s standing to do so is even clearer in this case. Here, unlike in Kinsella, the government was not a prevailing party. Rather, the district court below entered judgment against petitioners. Accordingly, the government’s standing to seek certiorari before judgment in this case should be beyond dispute.
B. Certiorari Before Judgment Is Warranted Here If Necessary To Ensure Timely and Definitive Resolution Of The Question Presented
All parties in this case agree that the question of DOMA Section 3’s constitutionality is one of exceptional public importance warranting this Court’s expeditious review. And no party disputes that this case squarely presents the question. BLAG nevertheless argues that “[t]here is no reason to take the extraordinary step of granting certiorari before judgment here when the exact same issue is presented in a pending petition for certiorari after judgment” in Massachusetts. No. 12-16 Br. in Opp. 1. That argument fails to grapple with the principal justification for the government’s petition in this

4
case: to ensure that this Court can timely and definitively resolve Section 3’s constitutionality. No. 12-16 Pet. 11. For the reasons explained in the government’s supplemental and reply briefs in United States v. Windsor, No. 12-307, in which the court of appeals has now issued its decision, the Court should grant review in that case. If, however, this Court were to determine that neither Windsor nor Massachusetts provides an appropriate vehicle to do so, this case could.
Although BLAG claims that the government could have sought certiorari before judgment “years ago” (No. 12-16 Br. in Opp. 15), the first court of appeals decision holding that Section 3 violated the Fifth Amendment’s guarantee of equal protection was issued on May 31, 2012. That recent development significantly changed the landscape of DOMA litigation, which has continued to advance quickly and has produced similar holdings in every court to have considered the issue since, including the Second Circuit’s decision in Windsor. In any event, BLAG agrees with the government that Section 3’s constitutionality now warrants this Court’s prompt resolution and that, if necessary, this petition provides an acceptable vehicle for that resolution. No. 12-307 BLAG Supp. Br. 12.
C. Granting This Petition Would Not Unnecessarily Complicate Proceedings Before This Court
BLAG expresses concern that granting this petition would “needlessly complicat[e]” this Court’s review on the merits. No. 12-16 Br. in Opp. 1. The complication it repeatedly refers to is the possible need for a briefing and argument order to realign the parties. See id. at 1, 19, 22-23. The potential issuance of a modified briefing and argument schedule, however, involves a modest step readily within the Court’s capability and prior practice.

5
In Chadha, for example, in which the Executive Branch agency (INS) appealed to the Court and in which the Court also granted certiorari petitions filed by both the Senate and House of Representatives, the parties filed briefs in the following order: the Senate and House filed “top-side” briefs as appellee-petitioner on the same day; the individual alien filed a “bottom-side” brief as appellee-respondent 42 days later, and the INS also filed a “bottom-side” brief shortly thereafter; and the Senate and House of Representatives filed reply briefs 30 days after the filing of the INS brief. See also Department of Health & Human Servs. v. Florida, 132 S. Ct. 840 (2011) (No. 11-398) (ordering briefing schedule on Anti-Injunction Act issue under which Courtappointed amicus curiae filed first; the Solicitor General and plaintiffs-respondents filed next simultaneously; the Solicitor General and plaintiffs-respondents then filed simultaneous reply briefs; and Court-appointed amicus filed its reply last). Of course, unlike in Chadha and Massachusetts, BLAG has not filed its own petition for certiorari in this case.
* * * * * For the reasons explained in the government’s supplemental brief (at 10-11) and reply brief in United States v. Windsor, No. 12-307, the Court should grant the petition for a writ of certiorari in that case. Although Department of Health and Human Services v. Massachusetts, petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), is also a case in which a court of appeals has rendered a decision, Windsor now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in Massachusetts was con-

6
strained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals in Windsor was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.
In the event the Court grants review in Windsor, it should hold the petitions in Massachusetts pending final resolution on the merits. In the event the Court decides that neither case in which the court of appeals has issued a decision provides an appropriate vehicle, it should grant the government’s petition for a writ of certiorari before judgment in either Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012), or Office of Personnel Management v. Pedersen, No. 12302 (filed Sept. 11, 2012).
Respectfully submitted.

NOVEMBER 2012

DONALD B. VERRILLI, JR. Solicitor General

 
 No. 12-16

In the Supreme Court of the United States
________________
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Petitioners,
v.
KAREN GOLINSKI, Respondent,
and BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondent. ________________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals
for_t_h__e_N__i_n_t_h__C_i_r_c_uit

BRIEF IN OPPOSITION ________________

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON CHRISTINE DAVENPORT BANCROFT PLLC

Senior Assistant Counsel 1919 M Street, N.W.

TODD B. TATELMAN

Suite 470

MARY BETH WALKER

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

U.S. HOUSE OF

REPRESENTATIVES 219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Respondent

QUESTIONS PRESENTED
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7. The Department of Justice argued, and the district court agreed, that DOMA violates equal protection. The Department now seeks certiorari before judgment in the Court of Appeals.
The questions presented are:
(1) Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?
(2) Petitioners are a federal agency and officer who do not have general responsibility for administering DOMA, but merely oversee a limited number of its applications. When such agencies or officers argue that a federal statute is unconstitutional and prevail in the lower courts, and where the House of Representatives has intervened to defend the statute, do the agencies and officers have prudential standing to seek this Court’s review of the judgment they requested?

ii
PARTIES TO THE PROCEEDING
Respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) was the intervenor-defendant in the district court and is an appellant in the Ninth Circuit.1 The Department of Justice’s statement in its Petition on behalf of the Executive Branch defendants that the House intervened merely “to present arguments” in favor of DOMA, see Pet. (II), is inaccurate. Although the Department argued in the district court that the House’s intervention should be limited to those terms, the district court granted the House intervention as a “party-defendant” to fully litigate DOMA’s constitutionality under equal protection principles. App. 7a.
1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

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Petitioners, the Office of Personnel Management and John Berry, Director of the Office of Personnel Management, are Appellants/Cross-Appellees in the Ninth Circuit.
Karen Golinski was the plaintiff in the district court and is an Appellee in the Ninth Circuit.

iv
TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ...................................... v INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 2 1. The Defense of Marriage Act .............................. 2 2. The Justice Department’s About-Face
and the House’s Intervention ............................. 5 3. History of This Case............................................ 7
a. Procedural History ....................................... 7 b. The District Court’s Opinion...................... 10 c. Ninth Circuit Proceedings ......................... 12 4. Other Pending Petitions Involving DOMA Section 3 ............................................................ 13 REASONS FOR DENYING THE WRIT ................. 14 I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality .............. 16 II. This Case Presents Vehicle Problems Not Presented by the House’s Petition in Gill ........ 19 III. Certiorari in This Case Would Not Expedite This Court’s Review of DOMA .......... 20 IV. The Department Operates As a De Facto Amicus in This Case And That Status Is Best Accommodated By Granting The House’s Petition in No. 12-13 Alone ................. 22 CONCLUSION ......................................................... 23

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TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) .......................... 5
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................... 4
Bolling v. Sharpe, 347 U.S. 497 (1954) ............................................... 19
Brown v. Bd. of Educ., 344 U.S. 1 (1952) ................................................... 19
Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) ............................................. 14
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................ 5
Gill v. OPM, 682 F.3d 1 (1st Cir. 2012)...................................... 13
Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2011) ................. 8, 9
Gratz v. Bollinger, 539 U.S. 244 (2003) ............................................... 18
Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................... 19
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................................. 10
Hunt v. Ake, No. 04-cv-01852 (M.D. Fla. Jan. 20, 2005) ............. 5

vi
In re Golinski, 587 F.3d 901 (9th Cir. Jud. Cncl. 2009) ................. 8
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ................ 6
INS v. Chadha, 462 U.S. 919 (1983) ............................................... 20
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................... 10
Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012).................................. 2, 13
New Haven Inclusion Cases, 399 U.S. 392 (1970) ............................................... 19
Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935) ............................................... 19
Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012), appeal pending, No. 12-3273, pet. for cert. before judgment filed, No. 12-231 ......................... 14
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) ............................ 5
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ............. 6
Torres-Barragan v. Holder, No. 09-cv-8564 (C.D. Cal. Apr. 30, 2010)................ 6
United States v. Fanfan, 543 U.S. 220 (2005) ............................................... 18

vii
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................... 5
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), appeals pending, Nos. 12-2335 & 12-2435, pet. for cert. before judgment filed, No. 12-63................................................................ 14
Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ................................. 10
Constitutional Provision U.S. Const. art. II, § 3 ................................................ 5 Statutes 1 U.S.C. § 7 .............................................................. i, 2 5 U.S.C. § 8101 ........................................................... 4 5 U.S.C. § 8341(a)....................................................... 4 8 U.S.C. § 1186a(b)(1) ................................................ 4 I.R.C. § 2(b)(2) ............................................................ 4 I.R.C. § 6013(a)........................................................... 5 I.R.C. § 7703(b)........................................................... 4 38 U.S.C. § 101(31)..................................................... 4 42 U.S.C. § 1382c(d)(2)............................................... 4 42 U.S.C. § 416 ........................................................... 4 Revenue Act of 1921, § 223(b)(2),
42 Stat. 227.............................................................. 5 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31)......... 4, 5

viii
Regulation & Rules
U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995)............................ 5
Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993)...................... ii
Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...................... ii
Other Authorities
142 Cong. Rec. (1996)................................................. 2
142 Cong. Rec. (1996)................................................. 2
Br. of Pls.-Appellees Nancy Gill, et al., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207 & 10-2214 (1st Cir. Oct. 28, 2011) ........................................... 18
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ................................ 3
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................................................. 3
Dep’t of Justice’s Br., Bishop v. United States, No. 4:04-cv-848 (N.D. Okla. Nov. 18, 2011) ...................................... 7
Dep’t of Justice’s Br., Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011) .................. 7
Dep’t of Justice’s Br., Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012) ............ 7

ix
Dep’t of Justice’s Br., Lui v. Holder, No. 2:11-cv-1267 (C.D. Cal. Sept. 2, 2011) ............. 7
Dep’t of Justice’s Br., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 102214 (1st Cir. Sept. 22, 2011).................................. 7
Dep’t of Justice’s Br., Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn. Sept. 14, 2011) ............ 7
Dep’t of Justice’s Br., Revelis v. Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012) .............. 7
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ..................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996), reprinted in Defense of Marriage Act: Hearing on S.1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) ................................ 3
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html .................................... 6, 7

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Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill (June 30, 2012) ................................................ 13, 16
Pet. for Cert., No. 12-15, U.S. Dep’t of HHS v. Massachusetts (July 3, 2012) ......................................................... 16

INTRODUCTION

The House respectfully opposes the Petition for a

Writ of Certiorari Before Judgment filed in this case

(“Petition”).

The important issue of the

constitutionality of Section 3 of DOMA is squarely

presented to this Court in the earlier-filed Petition

after judgment in No. 12-13, Bipartisan Legal

Advisory Group of the U.S. House of Representatives

v. Gill. That Petition comes in the ordinary course

following the judgment and opinion of the Court of

Appeals for the First Circuit. There is no reason to

take the extraordinary step of granting certiorari

before judgment here when the exact same issue is

presented in a pending petition for certiorari after

judgment. That is particularly true in this case,

where it is the prevailing party in the district court

that seeks to invoke this Court’s review and the case

is in other respects a less attractive vehicle for this

Court’s review.

Granting this extraordinary Petition for certiorari before judgment would accomplish nothing beyond needlessly complicating this Court’s review on the merits. The Department of Justice (“Department”) prevailed in both the district court in this case and in the decision and judgment of the First Circuit in Gill. There is certainly no reason for the Department to get the benefit of an opening and reply brief in both cases, and even less reason to have different briefing schedules in the two cases such that those defending DOMA would file first in Gill while the Department files first here. Thus, if this Court were to grant the Petition here, to preserve the proper alignment of the parties it would have to undo the effect of that decision to grant

2
certiorari to the Department by realigning the parties and setting a unique briefing schedule that properly provides an opening and reply brief to the House. There is no need for any of that. The straightforward course here is also the correct one: This Court should grant the House’s Petition in No. 12-13 to review the decision and judgment of the First Circuit and deny this request for certiorari before judgment.2
STATEMENT OF THE CASE
1. The Defense of Marriage Act
The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 6 (1st Cir. 2012). The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate).
Section 3 of DOMA defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. These definitions apply for purposes of federal law only. DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage. Section 3 of DOMA simply asserts the federal government’s right as a separate sovereign to
2 For the same and additional reasons, the Court should also deny the other premature petitions, see infra pp. 13-14, and the Department’s unnecessary Petition in No. 12-15. See the House’s Br. in Opp., No. 12-15 (Aug. 31, 2012).

3
provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the opinion of the Department on the bill’s constitutionality, and the Department three times reassured Congress by letter that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 2 (1996) (“Senate Hrg.”). Congress also received and considered other expert advice on DOMA’s constitutionality and determined that DOMA is constitutional. E.g., House Rep. 33 (DOMA “plainly constitutional”); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 87117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell).
Congress, of course, did not invent the meanings of the words “marriage” and “spouse” when it enacted DOMA in 1996. Instead, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage,

4
see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), did not automatically dictate the definition in other jurisdictions. Thus, Section 2 of DOMA allowed each state to decide whether to retain the traditional definition without having another jurisdiction’s decision imposed via full faith and credit principles, and Section 3 preserved the federal government’s ability to retain the traditional definition for federal law purposes. Moreover, pre-1996 Congresses decidedly did not regard themselves as powerless to define marriage for purposes of federal law. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law marital status, it also has a long history of supplying federal marital definitions in various contexts—definitions that always have been controlling for purposes of federal law, without regard to the couple’s status under state law.3 Indeed, in clarifying the meanings of “marriage” and “spouse” in federal law by enacting DOMA, Congress merely reaffirmed what it has always meant when
3 See, e.g., I.R.C. § 2(b)(2) (deeming persons unmarried who are legally separated from their spouse or whose spouse is a nonresident alien); I.R.C. § 7703(b) (excluding some couples “living apart” from federal marriage definition for tax purposes); 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “’spouse’ means a person of the opposite sex”); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for social-security purposes); 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A), (a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 1186a(b)(1) (anti-fraud criteria regarding marriage in immigration law context).

5
using those words in federal law—and what courts and the Executive Branch have always understood it to mean: A traditional male-female couple.4
2. The Justice Department’s About-Face and the House’s Intervention
After DOMA’s enactment, discharging the Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, the Department during the Bush Administration successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.5 The Department continued to
4 See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 (permitting “a husband and wife living together” to file a joint tax return; cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) (“The term ‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes.”), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”).
5 See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary

6
defend DOMA during the first two years of the current Administration, prevailing in an additional district court case in the Ninth Circuit. See TorresBarragan v. Holder, No. 09-cv-8564 (C.D. Cal. Apr. 30, 2010).
In February 2011, however, the Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag223.html (“Holder Letter”). Attorney General Holder stated that he and President Obama were of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

7
In response, the House sought and received leave to intervene as a party-defendant in the various cases nationwide involving equal-protection challenges to DOMA’s constitutionality. Notwithstanding that the Holder Letter said only that the Department would not defend DOMA Section 3, the Department went further and affirmatively attacked Section 3 in court and accused the Congress that enacted DOMA—many of whose Members still serve—of doing so out of “animus.”6 The Department took this position even though DOMA was the very same statute (i) that the Department had defended a few short months before, and (ii) that the Department acknowledges is constitutional under the equal protection standard that applies in the great majority of Circuits, including the Ninth Circuit (rational basis review).
3. History of This Case
a. Procedural History
Ms. Golinski obtained a marriage license with Amy Cunninghis, another woman, in California.
6 See Br. for OPM, et al., Golinski, Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012). The Department has filed substantive briefs in numerous other DOMA cases making this same argument. See briefs in Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012); Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011); Revelis v. Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012); Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012); Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011); Bishop v. United States, No. 4:04-cv-848 (N.D. Okla. Nov. 18, 2011); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn. Sept. 14, 2011); Lui v. Holder, No. 2:11cv-1267 (C.D. Cal. Sept. 2, 2011).

8
Respondent’s Br. in Supp. of Cert. 1. In this litigation, Ms. Golinski seeks federal health insurance coverage for Ms. Cunninghis based on Ms. Golinski’s employment as a staff attorney for the Court of Appeals for the Ninth Circuit. Id.
The litigation began as an administrative proceeding in the Ninth Circuit Judicial Council’s employee dispute resolution program. Chief Judge Kozinski, sitting in his administrative capacity, ruled that although Ms. Cunninghis could not be regarded as Ms. Golinski’s “spouse” within the meaning of the relevant statutes, she nevertheless was entitled to benefits as a “member of [Ms. Golinski’s] family.” In re Golinski, 587 F.3d 901, 902 (9th Cir. Jud. Cncl. 2009). When the Office of Personnel Management disagreed and continued to deny Ms. Cunninghis’ enrollment in the relevant health coverage plan, Ms. Golinski filed the instant suit in the Northern District of California. Her initial complaint sought only mandamus relief to enforce Judge Kozinski’s administrative order. The district court dismissed this mandamus claim, concluding that OPM had no clear non-discretionary duty to comply with an administrative order of that type. See generally Golinski v. OPM, 781 F. Supp. 2d 967 (N.D. Cal. 2011).
In so ruling, however, the district court gratuitously expressed its “clear and resolute * * * condemnation of” DOMA as “a discriminatory rule of law.” Id. at 971. The court further said that it “would, if it could, address the constitutionality of * * * the legislative decision to enact Section 3 of DOMA to unfairly restrict benefits and privileges to state-sanctioned same-sex marriages,” and granted

9
Ms. Golinski “leave to amend to attempt to plead a [constitutional] claim.” Id. at 975.
Ms. Golinski accepted this extraordinary judicial invitation and amended her complaint to challenge Section 3 on equal protection grounds, as well as reasserting her statutory claim. After the Department notified the Court that it would not defend against these claims, the House then sought, and was granted, leave to intervene as a party-defendant to defend DOMA’s constitutionality under equal protection. Order, Golinski, No. 10-cv-257 (N.D. Cal. June 3, 2011). Contrary to Petitioners’ suggestion that the House intervened merely to “present arguments in defense” or to “present a defense” of DOMA Section 3, Pet. (II), 6; see also Pet. 7, 10 & n.4, the district court expressly stated that the House “intervene[d] as a party-defendant,” App. 7a, and the House has participated as a party in this case.
The House moved to dismiss. The Department also filed a document styled a motion to dismiss, but, with respect to DOMA’s constitutionality, the motion was pro forma only. Mot. to Dismiss, Golinski (N.D. Cal. June 3, 2011). Far from actually seeking dismissal, the Department filed an “opposition” to its own motion to dismiss as well as the House’s motion, arguing that DOMA is unconstitutional and that the district court “should deny the motions to dismiss.” Defs.’ Br. in Opp. to Mots. to Dismiss 24, Golinski (N.D. Cal. July 1, 2011).
In its filing, the Department acknowledged that its heightened-scrutiny theory was foreclosed by “binding authority of this circuit hold[ing] that rational basis review applies to sexual orientation

10
classifications,” but maintained that these Ninth Circuit precedents were “incorrect.” Id. at vi.
b. The District Court’s Opinion
The district court—making good on its earlier promise—agreed with the Department and held that DOMA is subject to heightened scrutiny and is unconstitutional under that standard. App. 18a-44a. Although the House and the Department both agreed that the district court was bound by the Ninth Circuit’s “hold[ing] 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,” High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990), the district court described this holding as “outdated” and abrogated by this Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), App. 23a, notwithstanding the Ninth Circuit’s earlier conclusion that its precedents holding that sexual orientation classifications are not subject to heightened equal protection scrutiny “w[ere] not disturbed by Lawrence, which declined to address equal protection.” Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008).
Having side-stepped circuit precedent calling for rational basis review, the district court then found heightened scrutiny appropriate under the factors identified by this Court as relevant to whether a classification should be treated as suspect. App. 25a-34a. The district court therefore invalidated DOMA under heightened scrutiny.

11
In the alternative, the district court declared that DOMA also failed rational-basis review, and concluded that none of the interests advanced by Congress in enacting DOMA, or the House in this litigation, supported it. App. 44a-60a. In doing so, the district court held that Congress could not credibly desire a nationally-uniform approach toward federal recognition of same-sex relationships, nor could it rationally desire to proceed with caution in this area. App. 54a-60a. This was clear because, in the district court’s view, Congress also has not barred (or did not bar in the past) federal recognition of marriages on which the states take (or have taken) differing approaches—such as interracial marriages, teen marriages, or marriages by close relatives. App. 55a, 58a. The court concluded that saving money is not a rational basis for DOMA unless there is some further justification for how the money is saved. App. 48a. The district court also dismissed our society’s preference for children to be raised by their biological mothers and fathers as a “bias,” App. 51a, referred to the desire to preserve and nurture traditional marriage as being based on “the Bible,” App. 51a, 52a, and assumed that DOMA cannot have a rational basis unless “denying marriage benefits only to same-sex couples will somehow make marriage between opposite-sex couples better.” App. 52a.
The district court thus held DOMA as applied to Ms. Golinski’s request for health insurance to be an equal-protection violation and entered a permanent injunction requiring OPM to enroll Ms. Cunninghis in its health coverage plan. The Department has not sought a stay of that injunction, and Ms. Cunninghis

12
has been enrolled in the plan. Letter from Shirley Patterson, Ass’t Dir., Fed. Employee Ins. Ops., OPM, to William Breskin, V.P., Gov’t Programs, Blue Cross and Blue Shield Ass’n (Mar. 9, 2012), Golinski, Nos. 12-15388 & 12-15409 (9th Cir. Apr. 5, 2012) (ECF No. 21-2).
c. Ninth Circuit Proceedings
The House appealed the district court’s judgment on February 24, 2012. Although the district court had entered the judgment and accepted the legal theory advanced by the Department of Justice, the Department filed a separate Notice of Appeal. The Department made clear it was attempting to appeal on the same issues the House had appealed. See OPM Mediation Questionnaire, Golinski, No. 1215409 (9th Cir. Mar. 5, 2012). The House moved to dismiss the Department’s appeal on the grounds that it is superfluous and that the Department lacked appellate standing. A motions panel of the Ninth Circuit has deferred this issue to the eventual merits panel. Order at 2, Golinski, Nos. 12-15388 & 1215409 (9th Cir. Apr. 11, 2012).
Presumably attempting to avoid the unwelcome prospect of explaining to a Ninth Circuit panel why DOMA was unconstitutional when the Department conceded that Ninth Circuit precedents require rational-basis review and had elsewhere conceded rational bases for DOMA exist, the Department petitioned for initial en banc hearing. Pet. for Initial Hrg. En Banc, Golinski (9th Cir. Mar. 26, 2012). That effort to circumvent the normal appellate process was denied by the Ninth Circuit, with no judge even requesting a poll. Order, Golinski (9th Cir. May 22, 2012). Recognizing that the

13
Department supported the judgment below despite being a nominal appellant, the Ninth Circuit set a briefing schedule under which the Department filed its substantive brief at the appellee stage. Order at 2, Golinski (9th Cir. Apr. 11, 2012). In its brief, the Department acknowledged that the district court had contravened binding circuit precedent by applying heightened scrutiny. Br. for OPM, et al. 17, Golinski (9th Cir. July 3, 2012).
Briefing in the Ninth Circuit was complete as of July 31, 2012. The Ninth Circuit has held the case in abeyance pending this Court’s disposition of the Department’s Petition for certiorari before judgment in this case. Order, Golinski (9th Cir. July 27, 2012).
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality is also presented by five other petitions for certiorari pending before this Court. Three petitions arise out of the First Circuit’s decision and judgment in the consolidated cases Massachusetts v. U.S. Department of HHS and Gill v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012). In that case, the First Circuit held DOMA unconstitutional under a novel “intensified scrutiny” standard of equal protection review. Id. at 10. On June 29, 2012, the House filed the first petition for certiorari seeking review of the First Circuit’s decision. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. On July 3, the Department filed its own petition in that case, No. 12-15. And on July 20, Massachusetts filed a conditional cross-petition, No. 12-97. No party has opposed the House’s Petition in No. 12-13.

14
Following the Department’s decision to seek certiorari before judgment here, private party plaintiffs have filed petitions for certiorari before judgment in two cases now pending in the Second Circuit. See Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), appeals pending, Nos. 122335 & 12-2435, pet. for cert. before judgment filed, No. 12-63; Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012), appeal pending, No. 12-3273, pet. for cert. before judgment filed, No. 12-231. The petitions for certiorari before judgment were filed in Windsor and Pedersen on July 16 and August 21, respectively. Unlike in this case, the Department has not petitioned for certiorari before judgment in Windsor or Pedersen.
REASONS FOR DENYING THE WRIT
A grant of certiorari before judgment in the Court of Appeals “is an extremely rare occurrence.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers). This Court’s Rule 11 provides that such a writ “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
This case does not remotely satisfy that standard. Although the issue of DOMA’s constitutionality is indeed a matter of great importance, particularly given the confrontation between the Legislative and Executive Branches engendered by the Department’s actions in this litigation, that issue has already been brought before this Court by “normal appellate practice”—in the form of the House’s Petition after decision and judgment in Gill, a case in which the

15
House, Department, Massachusetts, and the individual plaintiffs all agree that certiorari is appropriate. Thus, nothing is gained from granting certiorari before judgment in this case.
Instead, granting the writ here would result only in unnecessary duplication and confusion. The Department prevailed both in the district court here and in the First Circuit in Gill. There is no justification for allowing the Department to file an opening and reply brief in either case, let alone to proceed on completely different briefing schedules in this case and in Gill. Moreover, not only is there no justification for taking the extraordinary step of granting certiorari before judgment when the exact same issue is squarely presented in an earlier-filed petition for certiorari after judgment, but this case features vehicle problems not present in Gill. As explained at length in the House’s opposition in No. 12-15, it is not clear that a prevailing party even has appellate standing to seek this Court’s review. Although those principles may apply differently in the certiorari before judgment context, there is certainly no reason to grant that extraordinary relief and confront those issues when the same underlying constitutional issue is squarely presented in a case in which the First Circuit has already issued its opinion and entered judgment.
The Department’s effort to obtain certiorari before judgment in this case is truly extraordinary. If the Department were really eager to seek certiorari before judgment, it could have done so years ago. It makes little sense for the Department to make that extraordinary request only after a case—Gill—is properly before this Court in the ordinary course of

16
appellate proceedings. This case would add nothing except procedural complications to this Court’s consideration of DOMA’s constitutionality in Gill. The proper course here is also the straightforward one: There is no reason for the Department or this Court to search through the dockets of the courts of appeals for cases implicating DOMA’s constitutionality when the First Circuit has ruled. The First Circuit rejected the House’s arguments and the House alone seeks to have the First Circuit’s judgment overturned. Under these circumstances, the Court should grant the House’s Petition in No. 12-13 and deny the Department’s premature Petition here as well as the other premature petitions it has fostered.
I. Gill Presents Exactly the Same Question Regarding DOMA’s Constitutionality.
The question presented by the Department’s Petition in this case regarding DOMA is identical to the House’s Question 1 in Gill. Compare Pet. (II) with Pet. No. 12-13 i.7 In its Gill opinion, the First Circuit passed on exactly the same question as did the district court in this case: Whether DOMA is compatible with the Fifth Amendment’s implicit guarantee of equal protection. Likewise, the subissues addressed by the two courts were the same: Both opinions involved discussion of the proper level of constitutional scrutiny to apply, and the government interests supporting DOMA considered by the two courts were virtually identical. Thus, there is no aspect of the issues that would be
7 The Department’s petition in Gill also presents that same question. See Pet. No. 12-15 (I).

17
presented in this case as to DOMA’s constitutionality that the Court could not address as easily (or more easily) in Gill instead.
Petitioners do not really appear to suggest otherwise. Their only explanation for their Petition is their vague assertion that “[c]ertiorari before judgment is warranted * * * to ensure that this Court has an adequate vehicle to resolve the question of Section 3’s constitutionality in a timely and definitive manner.” Pet. 11 (emphasis added); see also Pet. 15 (“A grant of certiorari before judgment in this case is warranted to ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion.”) (emphasis added). But Petitioners offer little or no argument that Gill—a case in which normal appellate practice has been followed and in which the Department itself seeks review—is not an equally or more “adequate” and “appropriate” vehicle to consider the same issues.
Petitioners baldly state that “[t]he district court’s analysis” in this case of whether heightened scrutiny should apply “may materially assist this Court’s consideration of that question.” Pet. 13. Ms. Golinski apparently agrees. Resp. 4-5. But, this Court will have the benefit of the district court’s analysis—as well as that of multiple other district courts, some of which have upheld DOMA and some of which have struck it down—whether or not it grants an extraordinary petition for certiorari before judgment. Indeed, to the extent anything distinguishes the district court’s analysis from that of other courts, it is that Petitioners have acknowledged that the district court’s entire inquiry

18
into heightened scrutiny was inappropriate under binding Ninth Circuit precedent requiring rational basis scrutiny. See supra p. 13. In all events, nothing prevents the Department from citing the district court’s analysis here in its merits brief in Gill.
Nor is this a situation in which the Court might wish to grant certiorari before judgment in a case similar to one that has come before it in the ordinary course, in order to articulate how the rule of law it announces will apply to different factual and legal contexts. DOMA’s constitutionality is a straight upor-down proposition that will not vary by context: No party or court has yet contended or concluded that DOMA might be constitutional only in some situations or only as applied to some plaintiffs. Indeed, plaintiffs typically suggest that DOMA’s across-the-board nature and lack of contextspecificity are part and parcel of its constitutional difficulty. See, e.g., Br. of Pls.-Appellees Nancy Gill, et al. 8-12, Massachusetts, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Oct. 28, 2011). For this reason, the cases cited by Petitioners and Ms. Golinski involving grants of certiorari before judgment to consider varying aspects of a single constitutional question, see Pet. at 14-15, Resp. at 7, are inapposite here.8 In
8 Citing United States v. Fanfan, 543 U.S. 220 (2005) (reviewing particular applications of the Federal Sentencing Guidelines with United States v. Booker); Gratz v. Bollinger, 539 U.S. 244 (2003) (reviewing various university affirmativeaction policies together with Grutter v. Bollinger, 539 U.S. 306 (2003)); Brown v. Bd. of Educ., 344 U.S. 1, 3 (1952) (inviting petition in Bolling v. Sharpe, 347 U.S. 497, 498 (1954), to review various racial classifications); Norman v. Baltimore &

19
addition, this case and Gill do not involve the same facts, as did the New Haven Inclusion Cases, 399 U.S. 392, 418 (1970). See Pet. 15. Indeed, this case involves a single application of DOMA, while it is Gill that considers its application in multiple contexts.
In short, there is no good reason for this Court to take the extraordinary step of granting certiorari before judgment when the exact same issue is before the Court—and better presented—in a petition seeking review of the decision and judgment of the First Circuit in Gill.
II. This Case Presents Vehicle Problems Not Presented by the House’s Petition in Gill.
Granting certiorari in this case, however, would complicate consideration of the important constitutional issue raised in Gill both procedurally and substantively. Procedurally, because the Department prevailed both in the First Circuit and the district court here, it would make no sense to give the Department the benefit of an opening and reply brief in either case, and it would make even less sense to have disparate briefing schedules such that those defending DOMA would file first in Gill while the Department files first here. Thus, if the Court were to grant certiorari before judgment here, it would have to engage in a series of procedural machinations to align the parties properly. There is no reason to go through those steps when the Court can simply grant the House’s Petition in No. 12-13, thereby allowing the aggrieved party to file as
O.R. Co., 294 U.S. 240, 243 (1935) (considering varying factual applications of a statute in two consolidated cases).

20
Petitioner and the prevailing parties to file as Respondents.
The complications flowing from the Department’s success in the district court go well beyond scheduling. As explained more fully in the House opposition in No. 12-15, it is not clear that the Department even has appellate standing to petition. While appellate standing principles may apply differently in the certiorari before judgment context, there is no reason for this Court to get sidetracked by questions concerning appellate standing, the scope of INS v. Chadha, 462 U.S. 919, 930-931 (1983), or how those principles apply in the certiorari before judgment context. To the contrary, the Court can avoid all of these side issues and focus on the important question of DOMA’s constitutionality simply by granting the House’s Petition in No. 12-13.
III. Certiorari in This Case Would Not Expedite This Court’s Review of DOMA.
Petitioners assert that this Court has “previously granted certiorari before judgment when necessary to obtain expeditious resolution” of a case. Pet. 14. Ms. Golinski echoes this contention. Resp. 6. But promoting expedition is just one more reason why certiorari before judgment is inappropriate here. Given the concurrent pendency of the House’s Gill Petition, granting certiorari before judgment in this case is not “necessary” for expeditious resolution of DOMA’s constitutionality; in fact it would not speed the process at all. Moreover, neither Petitioners nor Ms. Golinski point to any injury that either of them might suffer if the Ninth Circuit were permitted to review this case, or if this Court were to consider DOMA’s constitutionality in Gill instead. Nor could

21
they. Ms. Golinski currently is receiving all the relief she requested pursuant to the district court’s injunction, Petitioners acquiesced in the grant of that relief rather than seek a stay, and this case’s ultimate resolution will in no way be delayed if the writ is granted in Gill instead.
Even if this were not the case, the Department cannot credibly assert an extraordinary need for expedition, when the Executive Branch’s own actions throughout the DOMA litigation have been thoroughly inconsistent with that position. If the Department believed that certiorari before judgment was appropriate, it could have sought such review as early as October 2010 when it appealed the Gill and Massachusetts cases. There would have been no question about appellate standing then either because at the time the Department was defending DOMA. If a desire for expedition were somehow linked to the Department’s abdication of its defense of DOMA, it could have sought certiorari as early as February 2011. Thus, the Department offers no credible reason for waiting until July 2012. While presumably the decision to seek review here was somehow linked to the House’s decision to seek review of the First Circuit’s decision, that connection is baffling and in no way supports the Department’s expedition argument. Indeed, the Department’s filing for certiorari before judgment appears to have been precipitated by the one thing that makes certiorari before judgment less appropriate—a pending petition for certiorari allowing the Court to consider DOMA’s constitutionality in the normal course of orderly appellate review.

22
Nor has the Department offered any credible reason why this case is a better vehicle for this Court’s review than is any other case pending in, but not decided by, a court of appeals. This failure arguably explains why the Department’s decision to seek certiorari before judgment was quickly followed by premature petitions filed by two private parties. There is no obvious yardstick for comparing these equally premature petitions, but there is an obvious reason to prefer review in Gill: The case has followed the normal course of appellate review and the Court has the benefit of the First Circuit’s decision and judgment.
IV. The Department Operates As a De Facto Amicus in This Case And That Status Is Best Accommodated By Granting The House’s Petition in No. 12-13 Alone.
Ever since the Department abandoned its traditional responsibility of defending the constitutionality of DOMA, it has operated as a de facto amicus supporting the arguments of plaintiffs attacking DOMA’s constitutionality. As such, the Department is not entitled to any special consideration of its views as to the appropriate vehicle for this Court’s review. Thus, where the only party defending DOMA (the House) and the plaintiffs who have attacked DOMA all agree that Gill is an appropriate vehicle for this Court’s review, the Department’s suggestion that this Court should accept its extraordinary Petition for certiorari before judgment should be viewed with deep skepticism.
Moreover, given the Department’s role as a de facto amicus supporting the plaintiffs, granting this Petition would lead to procedural complications and

23
require the Court to realign the parties for purposes of briefing and argument. There is no need to scramble the parties by granting this Petition only to undo the effect by granting later procedural motions when the House’s Petition in No. 12-13 accurately reflects the actual alignment of the parties. In the House’s Petition, all of the parties attacking DOMA are respondents who support affirmance. They can file “bottom-side” briefs defending the decision and judgment below and propose a division of argument among themselves. If this Court grants the Department’s Petition here, it will presumably need to consolidate the cases and realign the parties to achieve the same basic effect. There is no need for such machinations. The correct answer here is also the most straightforward: The proper petitioner is the party aggrieved by the one court of appeals decision to reach final judgment. The Court should grant the House’s Petition in No. 12-13, and deny this premature Petition as well as the other Petitions seeking the extraordinary remedy of certiorari before judgment.
CONCLUSION
For the foregoing reasons, the Department’s Petition for a writ of certiorari before judgment should be denied. The House’s Petition for certiorari in No. 12-13 should be granted.

24

Respectfully submitted,

PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com

KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700

August 31, 2012

Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives

 
 No. 12-16

IN THE
Supreme Court of the United States
_______________________

OFFICE OF PERSONNEL MANAGEMENT, ET AL., PETITIONERS, v.

KAREN GOLINSKI, RESPONDENT.
_____________________________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit
_____________________________

BRIEF OF THE RESPONDENT IN SUPPORT OF PETITION FOR CERTIORARI BEFORE
JUDGMENT
________________________

JON W. DAVIDSON Counsel of Record SUSAN L. SOMMER TARA L. BORELLI SHELBI D. DAY IVAN ESPINOZA-MADRIGAL Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 (213) 382-7600 jdavidson@lambdalegal.org

JAMES R. MCGUIRE GREGORY P. DRESSER RITA F. LIN AARON D. JONES Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 jmcguire@mofo.com

Attorneys for Respondent

i TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..............................................i TABLE OF AUTHORITIES........................................ii SUMMARY OF THE ARGUMENT ............................ 1 ARGUMENT ................................................................ 1 CONCLUSION ............................................................ 8

ii

Cases

TABLE OF AUTHORITIES

Page

Bolling v. Sharpe 347 U.S. 497 (1954) .................................................. 7

Brown v. Bd. of Educ. 344 U.S. 1 (1952) ...................................................... 7

Dames & Moore v. Regan 453 U.S. 654 (1981) .................................................. 6

Fields v. Palmdale Sch. Dist. 427 F.3d 1197 (9th Cir. 2005) .................................. 3

Gratz v. Bollinger 539 U.S. 244 (2003) .................................................. 7

Grutter v. Bollinger 539 U.S. 306 (2003) .................................................. 7

Mistretta v. United States 488 U.S. 361 (1989) .................................................. 6

Norman v. Baltimore & Ohio R.R. Co. 294 U.S. 240 (1935) .................................................. 7

R.R. Ret. Bd. v. Alton R.R. Co. 295 U.S. 330 (1935) .................................................. 7

Reid v. Covert 354 U.S. 1 (1957)...................................................6-7

iii Romer v. Evans
517 U.S. 620 (1996) .................................................. 4 Strauss v. Horton
207 P.3d 48 (2009)....................................................1 United States v. Booker
543 U.S. 220 (2005) .................................................. 6
Statutes 1 U.S.C. § 7 ........................................................ passim 28 U.S.C. § 1254(1) .................................................. 6, 7 28 U.S.C. § 2101(e) .................................................. 6, 7 110 Stat. 2419 .............................................................. 2
Other Authorities Bipartisan Legal Advisory Group of the House of Representatives v. Gill
No. 12-13 (filed June 29, 2012)................................7 Dep’t of Health & Human Servs. v. Massachusetts
No. 12-15 (filed July 3, 2012)...................................7 Plaintiff-Appellee’s Brief, Golinski v. Office of Personnel Management, et al. (July 3, 2012)
(No. 12-15388, Docket No. 85).................................3 Supreme Court Rule 11 ........................................... 6, 7

iv U.S. Census Bureau, Census Bureau Releases
Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/newsroom/releases/ archives/2010_census/cb11-cn181.html .................. 2

1
SUMMARY OF ARGUMENT
Respondent Karen Golinski (“Ms. Golinski”) submits this brief in support of the Solicitor General’s Petition for a Writ of Certiorari Before Judgment (the “Petition”), filed on July 3, 2012, to inform the Court that she acquiesces in the Petition and agrees with the Solicitor General that this case raises an issue of imperative and exceptional national public importance and is an ideal vehicle for the Court to consider, reach, and definitively resolve that issue.
ARGUMENT
This case presents only one issue: whether Section 3 of the federal “Defense of Marriage Act” (“DOMA”), 1 U.S.C. § 7, is constitutional. After a thorough review of the undisputed facts and precedent, the district court concluded that it is not. Pet. App. 59a (“DOMA unconstitutionally discriminates against same-sex couples.”).
The case arose after Ms. Golinski, a Staff Attorney with the Ninth Circuit Court of Appeals for more than 20 years, was denied health coverage for her spouse Amy Cunninghis, to whom she is lawfully married under California law. Pet. App. 2a; Strauss v. Horton, 207 P.3d 48, 122 (2009). They have been a committed couple for more than 22 years and are raising their nine-year-old son together. See Pet. App. 2a. Solely because of DOMA, Ms. Golinski was denied the same spousal health coverage that her heterosexual, married colleagues are able to take for

2
granted, even though Ms. Golinski has proudly provided the same valuable public service for more than two decades. See Pet. App. 14a-15a.
Section 3 of DOMA was adopted by 110 Stat. 2419 and sweepingly provides that “In determining the meaning of any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Section 3 of DOMA excludes state-sanctioned marriages of same-sex couples from recognition by the federal government for all purposes. In doing so, it causes grievous harms to tens of thousands of married same-sex couples and their families. See U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/newsroom/releases/ archives/2010_census/cb11-cn181.html; Pet. 3-4 (noting that the statute excludes the marriages of same-sex couples from recognition “for purposes of more than 1000 federal statutes and programs”). Delay in conclusively resolving the constitutionality of Section 3 of DOMA perpetuates and compounds such serious harms. Delay also burdens and creates uncertainty for state and local governments, businesses, and other third parties who currently must treat same-sex couples as married for purposes of state law but not married for purposes of federal law. Because the Executive Branch has concluded that Section 3 of DOMA is unconstitutional, but has

3
determined that it should continue to comply with that law until a “definitive” decision is reached regarding its constitutionality, see Pet. 5-6, delay in the authoritative resolution of this issue is all the more intolerable. This issue therefore calls out for prompt issuance of such a “definitive” decision.
The instant case is a particularly compelling case for consideration of whether Section 3 of DOMA is constitutional. As the District Court explained, “The pertinent facts are not in dispute.” Pet. App. 2a.
This case does not present any legal issue that might impede this Court from determining whether Section 3 of DOMA is unconstitutional. While Ms. Golinski previously raised in the district court a mandamus claim and a statutory claim under the Federal Health Benefits Act of 1959, she did not appeal dismissal of those claims by the district court and did not pursue these claims in her Ninth Circuit answering brief. See Plaintiff-Appellee’s Brief, Golinski v. Office of Personnel Management, et al. (July 3, 2012) (No. 12-15388, Docket No. 85). Those claims therefore have been waived. See Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1203 n.6 (9th Cir. 2005). Even were that not the case, Ms. Golinski hereby abandons any such claims before this Court. Additionally, this case was properly appealed to the Ninth Circuit because Ms. Golinski has neither pursued nor received damages in this action. Thus, the sole issue on appeal is whether Section 3 of DOMA is unconstitutional.

4
In addition, as explained in the Solicitor General’s Petition, Pet. 13, in this case, the district court fully analyzed the considerations this Court has identified as relevant to determining the important predicate question of what level of scrutiny the judiciary should apply to laws like DOMA’s Section 3 that discriminate on the basis of sexual orientation. Pet. App. 17a-20a, 25a-34a. This Court has never resolved this issue. See Pet. App. 24a (noting that, in Romer v. Evans, 517 U.S. 620, 632-33 (1996), this Court found it unnecessary to look beyond rational basis review to hold that Colorado’s state constitutional amendment barring antidiscrimination protections for lesbians, gay men, and bisexuals violated the U.S. Constitution’s guarantee of equal protection of the laws).
The district court carefully considered expert testimony and precedent establishing the long history of invidious discrimination against lesbians and gay men, the lack of relevance of a person’s sexual orientation to the ability to contribute to society, and—although of less weight in determining the applicable level of scrutiny—the ways in which sexual orientation is a core, defining, and immutable trait, as well as the political vulnerability of the lesbian and gay minority in our country. The district court’s factual findings, framing of the analysis, and thorough consideration of this initial question make this a particularly appropriate case in which to consider the constitutionality of Section 3 of DOMA.
Moreover, having determined that governmental discrimination based on sexual orientation should receive heightened judicial

5
scrutiny pursuant to the analysis established by controlling Supreme Court precedent, the district court analyzed whether Section 3 of DOMA could be justified under either heightened scrutiny or rational basis review, thoughtfully evaluating the expert testimony and legal authority relevant to both standards of review. Pet. App. 34a-44a, 47a-59a. The district court’s factual findings and thorough consideration of whether Section 3 of DOMA can be justified under any applicable level of scrutiny further make this case an especially helpful one in which to review Section 3’s constitutionality.
The significance of this case is testified to by the more than twenty amicus briefs submitted to the Ninth Circuit on all sides of the issue by, among others, the State of California; fourteen other states; ten senators; 132 members of the House of Representatives; numerous cities, including Boston, Los Angeles, New York, and Seattle; key medical and social science organizations such as the American Psychological Association, the American Medical Association, the American Academy of Pediatrics, and the National Association of Social Workers; scores of pre-eminent historians and law professors; leading businesses, unions, law firms, professional and trade organizations, and religious groups; and dozens of the nation’s top civil rights advocacy organizations.
Ms. Golinski accordingly agrees with the Solicitor General that this case is one in which the Court should exercise its power to grant a writ of certiorari before judgment “[b]ecause the issues presented here are of great significance and demand

6
prompt resolution.” Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); see also 28 U.S.C. § 1254(1) (noting that this Court may grant a writ of certiorari “upon the petition of any party … before or after rendition of judgment”); 28 U.S.C. § 2101(e) (“An application to the Supreme Court for a writ of certiorari to review a case before judgment may be made at any time before judgment.”); S. Ct. R. 11 (a petition for writ of certiorari before judgment may be granted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination by this Court”). The Ninth Circuit constitutes the largest circuit in this nation in both geography and population, and there are countless other married same-sex couples awaiting a final determination in Ms. Golinski’s case. This is one of the exceptional situations in which the grant of a petition for certiorari before judgment is clearly warranted in order to provide a swift and certain answer to a question of imperative public importance, which the question of the constitutionality of Section 3 of DOMA assuredly is and which this case optimally presents.
This Court has on numerous occasions invoked its power to grant a petition for certiorari before judgment to obtain prompt and final resolution of the constitutionality of an Act of Congress of broad or pressing concern like Section 3 of DOMA. See, e.g., United States v. Booker, 543 U.S. 220, 229 (2005) (constitutionality of provisions of Federal Sentencing Guidelines); Mistretta v. United States, 488 U.S. 361, 362, 371 (1989) (constitutionality of Sentencing Reform Act of 1984); Reid v. Covert, 354 U.S. 1, 5

7
(1957) (constitutionality of expansion of military jurisdiction over civilians under the Uniform Code of Military Justice); R.R. Ret. Bd. v. Alton R.R. Co., 295 U.S. 330, 344 (1935) (constitutionality of Railroad Retirement Act); Norman v. Baltimore & Ohio R.R. Co., 294 U.S. 240, 295 (1935) (constitutionality of congressional power and control over the monetary system under the Joint Resolution of June 5, 1933).
Cases involving acute national issues regarding the civil rights of minorities, like the present case, also have been recognized as particularly fitting for exercise of the Court’s authority to grant certiorari before judgment under 28 U.S.C. §§ 1254(1) and 2101(e) and Supreme Court Rule 11 in order to obtain swift and definitive resolution by this Court. This has been especially true where other cases are pending before the Court raising the same constitutional issue or issues in other contexts, as is the case here where petitions for certiorari were pending in Bipartisan Legal Advisory Group of the House of Representatives v. Gill, No. 1213 (filed June 29, 2012), and Dep’t of Health & Human Servs. v. Massachusetts, No. 12-15 (filed July 3, 2012) at the time the Solicitor General filed the petition for certiorari before judgment in the instant case. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 25960 (2003) (noting decision to hear and decide prior to judgment in Grutter v. Bollinger, 539 U.S. 306 (2003), as well); Brown v. Bd. of Educ., 344 U.S. 1, 3 (1952) (inviting filing of petition for certiorari before judgment in Bolling v. Sharpe, 347 U.S. 497, 498 (1954)).

8

In sum, this case clearly meets the criteria for granting a petition for certiorari before judgment. The legal issue raised has far-reaching consequences that it is important to have authoritatively resolved as soon as possible. Furthermore, the district court’s decision presents that issue in a clear and comprehensive manner, including determining both the appropriate level of scrutiny and whether Section 3 of DOMA can be justified under any level of scrutiny.

CONCLUSION

For the reasons set forth above, Ms. Golinski acquiesces in the Petition for a Writ of Certiorari Before Judgment in this case and supports it being granted.

Respectfully submitted,

JON W. DAVIDSON Counsel of Record SUSAN L. SOMMER TARA L. BORELLI SHELBI D. DAY IVAN ESPINOZA-MADRIGAL Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 (213) 382-7600 jdavidson@lambdalegal.org

JAMES R. MCGUIRE GREGORY P. DRESSER RITA F. LIN AARON D. JONES Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 jmcguire@mofo.com

Attorneys for Respondent

July 23, 2012

 
 No.
In the Supreme Court of the United States
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the Office of Personnel Management and John Berry, Director of the Office of Personnel Management.
Respondent who was plaintiff below is Karen Golinski.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS
Page
Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Constitutional and statutory provisions involved . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . 9
A. Review of the constitutionality of DOMA Section 3 is warranted . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. The exceptional public importance of the question presented warrants granting certiorari before judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Appendix A – Opinion of the district court (Feb. 22, 2012) . . . . . . . . . . . . . . . . . . . . . 1a
Appendix B – Judgment of the district court (Feb. 22, 2012) . . . . . . . . . . . . . . . . . . . . 62a
Appendix C – Defendants’ notice of appeal (Feb. 28, 2012) . . . . . . . . . . . . . . . . . . . . 64a
Appendix D – Intervenor-Defendant’s notice of appeal (Feb. 24, 2012) . . . . . . . . . . . . . 66a
Appendix E – Order of the court of appeals (May 22, 2012) . . . . . . . . . . . . . . . . . . . . 68a
Appendix F – Constitutional and statutory provisions involved . . . . . . . . . . . . . . . . 70a

Cases:

TABLE OF AUTHORITIES

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . 3
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . 7
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . 8

(III)

IV

Cases—Continued:

Page

Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . . . . 14 Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . 11 Golinski, In re:
587 F.3d 956 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 4 587 F.3d 901 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 4 Gratz v. Bollinger, 539 U.S. 244 (2003) . . . . . . . . . . . 14, 15 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . . . . . . 7, 12 INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . 10 Marriage Cases, In re, 183 P.3d 384 (Cal. 2008) . . . . . . . 3 Massachusetts v. United States Dep’t of Health & Human Servs., Nos. 10-2204, -2207, and -2214, 2012 WL 1948017 (1st Cir. May 31, 2012) . . . . . 3, 11, 15 Mistretta v. United States, 488 U.S. 361 (1989) . . . . . . . 14 National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012) . . . . . . . . . . . . . . . . . . . . . . . 10 New Haven Inclusion Cases, 399 U.S. 392 (1970) . . . . . 15 Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) . . . . . . . . . 3 Quirin, Ex parte, 317 U.S. 1 (1942) . . . . . . . . . . . . . . . . . 14 Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . 11 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) . . . . . . . . . . . . 3 United States v. Bankers’ Trust Co., 294 U.S. 240 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 United States v. Fanfan, 543 U.S. 220 (2005) . . . . . 14, 15

V

Cases—Continued:

Page

United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . 14
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Constitutions, statutes and rule:

U.S. Const.: Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 11 Amend. XIV (Equal Protection Clause) . . . . . . . . . . . . 3
Cal. Const. Art. I, § 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defense of Marriage Act, Pub. L. No. 104-199,
110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . . 2 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . passim
5 U.S.C. 8901(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 28 U.S.C. 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sup. Ct. R. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice (9th ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI

Miscellaneous—Continued:

Page

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . 3, 8
James Lindgren & William R. Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup. Ct. Rev. 259 . . . . . . . . . . . . . . . 14
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10
U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report (2004), http:// www.gao.gov/new.items/d04353r.pdf . . . . . . . . . . . 3, 15

In the Supreme Court of the United States
No. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. KAREN GOLINSKI
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the Office of Personnel Management, et al., respectfully petitions for a writ of certiorari before judgment in a case pending on appeal to the United States Court of Appeals for the Ninth Circuit.
OPINION BELOW
The opinion of the district court (App., infra, 1a-61a) is reported at 824 F. Supp. 2d 968.
JURISDICTION
The judgment of the district court was entered on February 22, 2012. Notices of appeal were filed on February 24, 2012, and February 28, 2012 (App., infra, 64a-
(1)

2
65a, 66a-67a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 70a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7).

3
b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including California, later recognized such marriages under their respective laws. See Massachusetts v. United States Dep’t of Health & Human Servs., Nos. 10-2204, -2207, and -2214, 2012 WL 1948017, at *1 nn.1-2; In re Marriage Cases, 183 P.3d 384 (Cal. 2008).1
Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them, it excludes such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/new.items/ d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial ben-
1 The California Supreme Court’s decision in In re Marriage Cases was superseded by a 2008 state constitutional amendment that limited state-recognized marriages to those between a man and a woman. Cal. Const. Art. I, § 7.5. That amendment did not, however, invalidate samesex marriages performed before its effective date. Strauss v. Horton, 207 P.3d 48, 98-110, 119-122 (Cal. 2009) (interpreting the amendment to apply prospectively only). The Ninth Circuit later struck down the constitutional amendment as invalid under the Equal Protection Clause. Perry v. Brown, 671 F.3d 1052, 1096 (2012). The validity of that ruling is not at issue in this case.

4 efits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18.
2. Respondent Golinski is a staff attorney employed by the United States Court of Appeals for the Ninth Circuit. App., infra, 2a. In 2008, she married her samesex partner of more than 20 years, with whom she has a young son, in California. Ibid.; Second Am. Compl. ¶¶ 15, 17, 19. After they married, Golinski sought to enroll her spouse as a beneficiary under her federal employee “self and family” health insurance plan. Second Am. Compl. ¶¶ 17, 19, 22. The Administrative Office of the United States Courts refused her request on the ground that Section 3 of DOMA forbids extending Federal Employee Health Benefits Plan coverage to samesex spouses. Id. ¶¶ 23-24; see 5 U.S.C. 8901(5); see also 1 U.S.C. 7.
Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution Plan, contending that the denial of health benefits violated the Plan’s provisions forbidding discrimination on the basis of sex or sexual orientation. App., infra, 2a-3a. In a series of orders, Chief Judge Kozinski, sitting in his administrative capacity, ruled in Golinski’s favor and ordered the government to make health benefits available to Golinski’s spouse on the same terms that an opposite-sex spouse would have enjoyed. In re Golinski, 587 F.3d 956 (9th Cir. 2009) (Kozinski, C.J.); In re Golinski, 587 F.3d 901 (9th Cir. 2009) (Kozinski, C.J.); see App., infra, 3a-6a.
Golinski thereafter filed a mandamus action in the United States District Court for the Northern District of California to compel compliance with Chief Judge Kozinski’s orders. The district court granted the govern-

5 ment’s motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief, but granted leave to amend. 781 F. Supp. 2d 967 (N.D. Cal. 2011); see App., infra, 5a-6a. Golinski then filed an amended complaint in which she, inter alia, challenged the constitutionality of Section 3, as applied to deny health coverage for her spouse, and sought declaratory and injunctive relief. App., infra, 7a; Second Am. Compl. ¶¶ 72, 74-81.
3. While Golinski’s mandamus action was pending, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011) (Attorney General Letter).2 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the relevance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis
2 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

6 review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
Following the Attorney General’s announcement, respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.3 The district court granted the motion. 6/3/11 Order 1; see App., infra, 7a.
3 Two of the group’s five members declined to support intervention. BLAG Mot. to Intervene 1 n.1 (May 4, 2011).

7 Both BLAG and the government moved to dismiss Golinski’s amended complaint challenging the constitutionality of Section 3. While BLAG presented arguments in support of Section 3’s constitutionality, the government explained that it was filing a motion to dismiss Golinski’s constitutional claim solely for purposes of ensuring that the court had Article III jurisdiction to enter judgment for or against the federal officials tasked with enforcing Section 3. The government’s brief on the merits set forth its view that heightened scrutiny applies to Section 3 of DOMA and that, under that standard of review, Section 3 violates the equal protection guarantee of the Fifth Amendment. Gov’t Br. in Opp. to Mots. to Dismiss 2-23 (July 1, 2011). 4. The district court denied BLAG’s motion to dismiss and granted summary judgment in favor of Golinski, concluding that Section 3 of DOMA violates the equal protection guarantee of the Fifth Amendment. App., infra, 1a-61a. The district court acknowledged that the Ninth Circuit had previously held that laws that classify on the basis of sexual orientation are subject to deferential review under a rational basis standard. See App., infra, 20a-21a (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990)). The district court concluded, however, that High Tech Gays was no longer binding in light of intervening Supreme Court precedent. Id. at 21a-24a. The court explained that High Tech Gays had relied on this Court’s nowoverruled decision in Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003), upholding a state criminal prohibition on sodomy, as well as on a distinction between sexual orientation and same-sex behavior that this Court has since re-

8 jected, see Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010). After examining several factors bearing on the applicability of heightened scrutiny, including the history of discrimination against gay and lesbian individuals and the irrelevance of sexual orientation to an individual’s ability to contribute to society, the district court concluded that heightened scrutiny applies to sexual orientation classifications. App., infra, 25a-34a.
The district court held that Section 3 fails under heightened scrutiny. App., infra, 34a-53a. The court concluded that none of the actual rationales underlying Section 3’s enactment, as set out in the House Committee Report accompanying DOMA, provides a justification for the law substantially related to an important governmental objective. Id. at 36a-44a (citing 1996 House Report 12-18). The court explained that denying benefits to same-sex couples who are already married under state law does not substantially further any governmental interest in “responsible procreation and child-rearing” or in “nurturing the institution of traditional, heterosexual marriage.” Id. at 36a; see id. at 36a42a. The court further explained that neither an interest in “defending traditional notions of morality” nor an interest in “preserving scarce government resources” justifies Section 3’s differential treatment of same-sex married couples. Id. at 36a; see id. at 42a-44a.
In the alternative, the district court held that Section 3 fails rational basis review. App., infra, 44a-59a. The court concluded that none of the stated rationales for Section 3’s enactment bears a rational relationship to a legitimate governmental objective. Id. at 47a-53a. The court also rejected several additional rationales offered by BLAG, including “preserving the status quo in the

9
federal definition of marriage while waiting for the states to ‘tinker with the substantive centuries-old definition of marriage,’ ” id. at 54a (citation omitted), “Congressional caution in [an] area of social divisiveness,” id. at 56a, and maintaining consistency in the provision of federal benefits, id. at 58a. The court reasoned that, because pre-DOMA federal law generally recognized marriages that were valid under state law, Section 3 neither preserves the status quo nor promotes consistency in the administration of federal programs. Id. at 54a-56a, 58a-59a. And in the court’s view, “[t]he fact that the issue is socially divisive” is not a rational basis for “the discriminating classifications in the law.” Id. at 56a-58a.
5. Both BLAG and the government filed timely notices of appeal to the United States Court of Appeals for the Ninth Circuit. App., infra, 64a-65a (government notice of appeal); id. at 66a-67a (BLAG notice of appeal). The court of appeals has jurisdiction pursuant to 28 U.S.C. 1291. The appeals were docketed as No. 12-15388 and No. 12-15409.
The government petitioned the court of appeals for initial hearing en banc. The court denied the petition. Pet. App. 68a-69a. The case remains pending before a panel of that court. See ibid. The case is therefore “in the court[] of appeals” within the meaning of 28 U.S.C. 1254. See Eugene Gressman et al., Supreme Court Practice § 2.4, at 83-84 (9th ed. 2007).
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. Because such differential treat-

10
ment bears no substantial relationship to any important governmental objective, Section 3 violates the guarantee of equal protection secured by the Fifth Amendment.
Although the Executive Branch agrees with the district court’s determination in this case that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As the federal entities charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a congressional enactment on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).4
4 The fact that the government agrees with respondent Golinski that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D

11
The government is today filing a petition for a writ of certiorari seeking review of the decision of the United States Court of Appeals for the First Circuit in Massachusetts v. United States Department of Health & Human Services, Nos. 10-2204, -2207, and -2214, 2012 WL 1948017 (May 31, 2012), which invalidated Section 3 as violative of the Fifth Amendment’s equal protection guarantee. Certiorari before judgment is warranted under the exceptional circumstances of this case to ensure that this Court has an adequate vehicle to resolve the question of Section 3’s constitutionality in a timely and definitive manner. Authoritative resolution of the question presented is of great importance to the United States and to respondent Golinski and tens of thousands
and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department’s position in this case. The Department did not oppose the subsequent intervention by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation).

12
of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law.
A. Review Of The Constitutionality Of DOMA Section 3 Is Warranted
Review is warranted in this case because the court below invalidated an Act of Congress as unconstitutional. As the government explained in its petition for a writ of certiorari in Massachusetts, the question of Section 3’s constitutionality raises important questions of federal law that have not been, but should be, settled by this Court. Massachusetts Pet. 14-22.
As the petition in Massachusetts further explains, although every court of appeals to address the issue has concluded that classifications based on sexual orientation are subject to rational basis review, none has offered an explanation for that conclusion that withstands scrutiny under this Court’s precedents. Massachusetts Pet. 18-21. In the decision below, the district court concluded that Ninth Circuit precedent applying rational basis review to sexual orientation classifications is irreconcilable with intervening Supreme Court precedent. See App., infra, 21a-23a (criticizing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990)). The court further concluded that each factor bearing on the applicability of heightened scrutiny, including whether the challenged legislation targets a class of individuals who have historically suffered discrimination on the basis of a characteristic not ordinarily relevant to state decisionmaking, counsels in favor of applying heightened scrutiny to classifications based on sexual orientation. Id. at 25a-34a.

13
The district court concluded that Section 3 cannot survive under heightened scrutiny because the denial of federal benefits to same-sex couples who are legally married under their States’ laws bears no substantial relationship to any important governmental purpose that motivated Section 3’s enactment. App., infra, 36a44a. Alternatively, the district court concluded that Section 3 would fail even rational basis review because Section 3 is not rationally related to any conceivable legitimate interest of the federal government. Id. at 44a-59a.
This case squarely raises important questions about the Constitution’s equal protection guarantee as it applies to a federal statute that draws distinctions among persons who are legally married under their States’ laws on the basis of their sexual orientation. For the reasons given in the government’s Massachusetts petition, those questions, and the ultimate question of the constitutionality of Section 3 of DOMA, warrant authoritative resolution by this Court.
B. The Exceptional Public Importance Of The Question Presented Warrants Granting Certiorari Before Judgment
In this case, unlike Massachusetts, the court of appeals has not yet reviewed the judgment. But also unlike Massachusetts, the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question. Because the issues raised by the decision below are of exceptional public importance and call for definitive and timely resolution by this Court, the petition for

14 a writ of certiorari before judgment in this case should be granted.
1. Under this Court’s rules, a petition for a writ of certiorari before judgment in a case pending in a court of appeals will be granted “only upon a showing that the case is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11.
This Court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions. See, e.g., United States v. Fanfan, 543 U.S. 220, 229 (2005) (constitutionality of mandatory applications of the United States Sentencing Guidelines); Gratz v. Bollinger, 539 U.S. 244, 259-260 (2003) (constitutionality of race-conscious undergraduate admissions program); Mistretta v. United States, 488 U.S. 361, 362, 371 (1989) (constitutionality of the federal Sentencing Guidelines); Dames & Moore v. Regan, 453 U.S. 654, 667-668 (1981) (validity of Iran hostage agreement); United States v. Nixon, 418 U.S. 683, 686-687 (1974) (validity of subpoena to the President); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952) (validity of President’s steel seizure order); Ex parte Quirin, 317 U.S. 1, 19-20 (1942) (validity of President’s assignment to a military tribunal of jurisdiction over the trial of belligerent saboteurs). See generally James Lindgren & William R. Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup. Ct. Rev. 259.
Among these cases are several in which the Court has granted certiorari before judgment because it had also granted review in another case presenting the same

15 or similar issue. See, e.g., Fanfan, 543 U.S. at 229 (decided with United States v. Booker); Gratz, 539 U.S. at 259 (presenting issue similar to another case granted in the ordinary course); New Haven Inclusion Cases, 399 U.S. 392, 418 (1970) (petition for certiorari before judgment granted to permit consideration of issues in tandem with closely related case in which Court had noted probable jurisdiction); United States v. Bankers’ Trust Co., 294 U.S. 240, 243 (1935) (Court granted United States’ petition for certiorari before judgment where another case presenting same issue was already pending before the Court).
2. The government is today filing a petition for a writ of certiorari to the First Circuit in Massachusetts, supra. A grant of certiorari before judgment in this case is warranted to ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion.
Assurance that the Court will have a vehicle in which to reach and resolve the important issues presented is warranted in light of the great public importance of the issues at stake. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have an important impact on the conduct of a wide array of Executive functions. Consistent with the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution of the question presented. Other cases challenging the

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constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and definitive ruling on the constitutionality of Section 3 of DOMA is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE HELEN L. GILBERT
Attorneys
JULY 2012

APPENDIX A UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-00257 JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
Filed: Feb. 22, 2012
ORDER
Now before the Court are the motion to dismiss and the motion to strike filed by Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) and the motion for summary judgment filed by Plaintiff Karen Golinski (“Ms. Golinski”). Defendants the United States Office of Personnel Management (“the OPM”) and John Berry, its director, also filed a motion to dismiss and a response to BLAG’s motion to dismiss. These motions compel the Court to determine whether the Defense of Marriage Act (“DOMA”), 1 U.S.C. Section 7, as applied to Ms.
(1a)

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Golinski, violates the United States Constitution by refusing to recognize lawful marriages in the application of laws governing benefits for federal employees. Having considered the parties’ papers, relevant legal authority, and the record in this case, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss.
BACKGROUND
The pertinent facts are not in dispute. Ms. Golinski is a staff attorney in the Motions Unit of the Office of Staff Attorneys in the United States Court of Appeals for the Ninth Circuit. (Second Amended Complaint (“SAC”) at ¶ 18.) Ms. Golinski has been partners with Amy Cunninghis (“Ms. Cunninghis”) for over twenty years. They registered as domestic partners with the City and County of San Francisco in 1995, and with the State of California in 2003. (Id. at ¶¶ 15-17.) On August 21, 2008, they were legally married under the laws of the State of California. (Id. at ¶ 17.)
Shortly after they married, Ms. Golinski sought to enroll Ms. Cunninghis in her existing family coverage health insurance plan, Blue Cross and Blue Shield Service Benefit Plan, which she purchases through her employer and which already covers the couple’s adopted minor child. (Id. at ¶¶ 19, 22.) The Administrative Office of the United States Courts (“AO”) refused to process her request on the basis that Ms. Golinski and her spouse are both women. (Id. at ¶ 23.) Finding that she could not secure comparable health insurance coverage, on October 2, 2008, Ms. Golinski filed a complaint under the Ninth Circuit’s Employment Dispute Resolution

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(“EDR”) Plan, and contended that the refusal to grant her health benefits was a violation of the Plan’s nondiscrimination provision. (Id. at ¶ 48.) The EDR Plan specifically prohibits employment discrimination based on, among other things, sex or sexual orientation. (Id. at ¶ 47.)
By orders dated November 24, 2008 and January 13, 2009, Chief Judge Alex Kozinski, sitting in his administrative capacity as arbiter of the Judicial Council, found that Ms. Golinski had suffered discrimination under the Court’s EDR Plan and ordered the AO to process her health benefit election forms. (Id., Exs. A, B.) Chief Judge Kozinski found that the denial of health benefits was based solely on the grounds of sex and sexual orientation, in direct violation of the EDR Plan’s nondiscrimination provision covering Ninth Circuit employees. (Id., Ex. B at 1-2.) Chief Judge Kozinski found that, regardless of the language in DOMA, the OPM had the discretion to extend health benefits to Ms. Golinski’s same-sex spouse by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. (Id. at 2-3.) Chief Judge Kozinski ordered the AO “to submit Karen Golinski’s Health Benefits Election form 2089 . . . to the appropriate insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of the listed spouse.” (Id., Ex. B at 7.)
The AO complied, but the OPM instructed Ms. Golinski’s insurance carrier not to comply with the Ninth Circuit Judicial Council’s remedial order. The OPM directed the AO and the Blue Cross and Blue Shield Service Benefit Plan not to process Ms. Golinski’s request on the basis that federal law, specifically Section 3 of

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DOMA, defines spouse as a member of the opposite sex and, accordingly, proscribes the enrollment of Ms. Golinski’s same-sex spouse in her health benefits program.
In response, on November 19, 2009, Chief Judge Kozinski issued another order addressing the OPM’s conduct. The Chief Judge, again sitting as an administrator, held that he had the authority, under both the Ninth Circuit’s EDR Plan and the separation of powers doctrine, to interpret the laws applicable to judicial employees in a manner that would displace “any contrary interpretation by an agency or an officer of the Executive.” (Id., Ex. C at 14-15.) Chief Judge Kozinski held that allowing the OPM to interfere with his orders would be tantamount to permitting it to exercise “dominance over logistics to destroy [the Judiciary’s] autonomy.” (Id. at 11.) The Chief Judge further held that “[o]rdering enrollment is proper and within my jurisdiction because Congress intended [the EDR] tribunal to be the sole forum for adjudicating complaints of workplace discrimination by employees of the Judiciary. With that responsibility must come power equal to the task.” (Id. at 9.)
Chief Judge Kozinski granted Ms. Golinski both back pay and prospective relief. The injunctive relief required that the OPM “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit plan and any other plan that Ms. Golinski’s wife is not eligible to be enrolled as her spouse under the terms of the Federal Employees Health Benefits Program because of her sex or sexual orientation, or that the plans would violate their contracts with the OPM by enrolling Ms. Golinski’s wife as a beneficiary” and “[c]ease at once its interfer-

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ence with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law. Nor shall OPM interfere in any way with the delivery of health benefits to Ms. Golinski’s wife on the basis of her sex or sexual orientation.” (Id. at 15-16 (emphasis in original).)
The Chief Judge, in his order dated November 19, 2009, also invited the OPM to “appeal so much of this order as concerns it using the procedures outlines in the [EDR] plan.” (Id. at 16.) In response, the OPM did not appeal the order, but instead issued a press release indicating that it was under no obligation to comply with the administrative order and, although in favor of its repeal, indicated that the Executive agency was tasked with enforcing DOMA, which prohibits same-sex spouses of federal employees from enrolling in the federal health benefits program. (Id., Ex. F.)
In his final administrative order, dated December 22, 2009, Chief Judge Kozinski stated that the time for appeal had expired, thus rendering his prior orders in the matter “final and preclusive on all issues decided therein.” (Id., Ex. D.) He further authorized Ms. Golinski to pursue any action she deemed fit against the OPM, including filing a mandamus action in the district court. (Id.)
On January 20, 2010, Ms. Golinski filed a mandamus action before this Court, seeking to have the OPM rescind its guidance to Blue Cross and Blue Shield Service Benefit Plan to deny Ms. Golinski’s wife benefits as precluded by DOMA and to comply with Chief Judge Kozinski’s prior orders in her administrative claim.

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On January 26, 2010, Ms. Golinski moved for a preliminary injunction seeking compliance with Chief Judge Kozinski’s order dated November 19, 2009, requiring that the OPM: (1) “rescind its guidance or directive to the Blue Cross and Blue Shield Service Benefit Plan,” and (2) “cease at once its interference with the jurisdiction of this tribunal” and “not advise Ms. Golinski’s health plan, the Blue Cross and Blue Shield Service Benefit plan, that providing coverage for Ms. Golinski’s wife violates DOMA or any other federal law.” (Id. at Ex. C, 15-16.)
On May 10, 2010, the OPM moved to dismiss the First Amended Complaint on the basis that this Court lacked jurisdiction to grant mandamus relief under these peculiar procedural circumstances.
While those motions were pending and after the parties submitted supplemental briefing on the issue of the constitutionality of DOMA, on February 23, 2011, at the direction of President Obama, Attorney General Eric Holder announced that the Justice Department would cease its legal defense of Section 3 of DOMA. Although it determined that the statute was unconstitutional and resolved not to continue to defend DOMA in pending court cases, the Justice Department indicated that it did intend to continue to enforce the law unless it was either repealed by Congress or the courts rendered a final judgment striking it down. (See Plaintiff’s Notice of Supplemental Authority (“NSA”) dated February 23, 2011, Ex. 2.)
On March 16, 2011, the Court granted the motion to dismiss on the basis that it lacked jurisdiction to issue mandamus relief. Finding that amendment would not

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necessarily be futile, the Court dismissed the matter with leave to amend.
On April 14, 2011, Ms. Golinski filed her Second Amended Complaint in which she directly challenges the discrimination against her as a lesbian married to someone of the same sex. (SAC at ¶ 1.) In her amended complaint, Ms. Golinski alleges an action for declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201-2202 and Federal Rule of Civil Procedure 57 and for review of an agency action pursuant to 5 U.S.C. Sections 701-706. (Id. at ¶ 7.) By her amended complaint, Ms. Golinski seeks a determination that Section 3 of DOMA, 1 U.S.C. Section 7, as applied to her, violates the United States Constitution by refusing to recognize lawful marriages for the purposes of application of the laws governing benefits for federal employees. (Id.) Ms. Golinski alleges that as a result of the violation of the Constitution, she has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to her if she were a heterosexual with a opposite-sex spouse. (Id.)
The majority of a five-member committee in Congress voted to defend DOMA and, on May 4, 2011, BLAG sought to intervene in this matter. On June 3, 2011, this Court issued an order granting BLAG’s unopposed motion to intervene as a party-defendant for the limited purpose of defending the constitutionality of Section 3 of DOMA.
On June 3, 2011, BLAG moved to dismiss the Second Amended Complaint on the basis that Ms. Golinski fails to state a claim upon which relief may be granted because, as a matter of law, Section 3 of DOMA does not violate her rights under the equal protection component

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of the Due Process Clause of the Fifth Amendment. On the same date, the OPM moved to dismiss Ms. Golinski’s claim as set forth in the Second Amended Complaint only insofar as any claims could reasonably be construed to assert a statutory claim as to the language of the Federal Health Benefits Act of 1959. On July 1, 2011, Ms. Golinski moved for summary judgment. On July 15, 2011, BLAG moved to strike extrinsic materials from the record on Ms. Golinski’s opposition to the motion to dismiss. The Court heard oral argument on the motions on December 16, 2011.1
The Court shall address additional facts as necessary in the remainder of this order.
ANALYSIS A. Legal Standards.
1. Motion to Dismiss.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. The Court’s “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd . v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Even under Rule 8(a)’s liberal pleading standard, “a plaintiff’s obligation to provide the
1 Initially, BLAG moved to strike several declarations submitted by Ms. Golinski in response to the motion to dismiss. However, as the Court decides the motion for summary judgment and has therefore considered the full record, BLAG agreed to withdraw its motion to strike. The motion to strike is therefore DENIED as moot.

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‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 556-57) (internal quotation marks omitted). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton Industries, Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). The Court may consider the facts

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alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint, when the authenticity of those documents is not questioned, and other matters of which the Court can take judicial notice. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009). Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss. Such consideration does not convert the motion to dismiss into a motion for summary judgment. See United States v. Ritchie, 343 F.3d 903, 908 (9th Cir. 2003); Branch, 14 F.3d at 454.
2. Motion for Summary Judgment.
A motion for summary judgment is guided by a different standard. Summary judgment is appropriate when the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. A fact is “material” if it may affect the outcome of the case. Id. at 248. The party moving for summary judgment bears the initial responsibility of identifying those portions of the record which demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In the absence of

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such facts, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323.
Once the moving party meets this initial burden, the non-moving party “may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.
B. Defense of Marriage Act.
This action presents a challenge to the constitutionality of Section 3 of DOMA as applied to Ms. Golinski, a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse. Specifically, Ms. Golinski alleges that, by operation of Section 3 of DOMA, she has been denied certain marriage-based federal benefits that are available to similarly-situated opposite-sex couples, in violation of her rights to equal protection and due process as secured by the Due Process Clause of the Fifth Amendment.
In 1996, Congress enacted and President Clinton signed DOMA into law. Section 3 of DOMA, the only provision at issue in this matter, defines the terms “marriage” and “spouse” for purposes of federal law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a

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legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin, a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples may be entitled to marry under that state’s constitution. 74 Haw. 530 (1993). The decision raised the possibility that, for the first time, same-sex couples could begin the process of obtaining state-sanctioned marriage licenses. In debating the provisions of DOMA, the House referenced the Baehr decision as the beginning of an “orchestrated assault being waged against traditional heterosexual marriage” and expressed concern that the development “threaten[ed] to have very real consequences . . . on federal law.” H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.” or “House Report”). More specifically, the House Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” Id. at 10. Although a later amendment to the Hawaii constitution withheld permitting same-sex marriage in the state, Congress, explicitly in reaction to the impending Hawaii decision, sought a means both (1) to “reserve[] each State’s ability to decide” what should legally constitute a valid marriage under its own state laws, and (2) to “lay[] down clear rules” regarding what constitutes a marriage for purposes of federal law. Id. at 2.

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In Section 2 of DOMA, Congress, by virtue of the express grant of authority under the second sentence of the Full Faith and Credit Clause, permitted a state to decline to give effect to the laws of other states respecting same-sex marriage. In enacting Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law. Id. at 29 (citing Black’s Law Dictionary 972 (6th ed. 1990)).
The legislative history reveals that Congress acknowledged the constraints imposed by federalism on the determination of who may marry, which has always been uniquely the province of state law. Nonetheless, Congress asserted that it was not “supportive of (or even indifferent to) the notion of same-sex marriage,” and it embraced DOMA as a step toward furthering Congress’ interests in “defend[ing] the institution of traditional heterosexual marriage.” Id. at 12. “Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law.” Gill v. Office of Personnel Management, 699 F. Supp. 2d 374, 379 (D. Mass. 2010).2 Although drastically altering the benefits structure based on state definitions of marriage and the federalist balance in the area of domestic relations, Con-
2 In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect and concluded that the law implicated at least 1,049 federal laws, including those related to entitlement programs like Social Security, health benefits and taxation. A further study in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status. See Gill, 699 F. Supp. 2d at 379.

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gress did not hear testimony from agency heads about the effect of DOMA on federal programs, or from historians, economists, or specialists in family or child welfare. Id.
It is clear and undisputed that the federal health benefits Ms. Golinski seeks in trying to add her wife as a beneficiary under her health benefits plan falls under the reach of DOMA. The Federal Employees Health Benefits Program (“FEHB”) is a comprehensive program providing health insurance for federal civilian employees and their family members. 5 U.S.C. § 8905. The OPM administers the FEHB and negotiates contracts for coverage with potential carriers and sets the premiums for each plan. Id., §§ 8902, 8903, 8906. A federal employee enrolled in the FEHB chooses a carrier and plan and may determine whether to enroll for an individual plan, named “self only,” or for “self and family” coverage which, under the OPM’s regulations, “includes all family members who are eligible to be covered by the enrollment.” 5 C.F.R. § 890.302(a)(1). Under the FEHB, a “member of family” is defined as either “the spouse of an employee . . . [or] an unmarried dependent child under 22 years of age.” 5 U.S.C. § 8901(5). An employee enrolled under an individual plan may change to family coverage by submitting documentation to the employing office during the annual open season period or within sixty days of a change in family status, such as change in marital status. Id., § 8905(f); 5 C.F.R. §§ 890.301(f), (g).
Within sixty days of her marriage, Ms. Golinski sought to enroll her wife as a beneficiary of the family health plan. The OPM found Ms. Cunninghis was ineligible to qualify as a member of the family because, un-

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der DOMA, she did not qualify as a spouse of an employee.3 The question before the Court is whether Section 3 of DOMA, as applied to Ms. Golinski, violates constitutional principles of equal protection.
C. Equal Protection Analysis and Standard of Review.
The “Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (internal citations omitted). Although the Fifth
3 At the administrative appeal from the denial of benefits, Chief Judge Kozinski found that the FEHB statute confers on the OPM the discretion to extend health benefits to same-sex couples by interpreting the terms “family members” and “member of the family” to set a floor, not a ceiling, to coverage eligibility. (SAC, Ex. B at 2-3.) The Court finds this reasoning unpersuasive.
Where the statute unambiguously defines a term such as “member of family” to mean spouse (or dependent child under 22 years old), that definition controls to the exclusion of any meaning that is not explicitly stated in the definition. See Colautti v. Franklin, 439 U.S. 379, 393 n.10 (1979); see also TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001) (holding that, for purposes of statutory construction, expression of one thing is the exclusion of the other). DOMA offers the same clarity and defines “spouse” for the purposes of determining the meaning of federal legislation as “a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7. Confronted with such unambiguous statutory language, the Court is not persuaded that the FEHB statute could provide the OPM with the discretion to provide health benefits to same-sex couples. See In re Levenson, 587 F.3d 925, 930-31 (9th Cir. 2009); Gill, 699 F. Supp. 2d at 385-86. This disposes of Ms. Golinski’s remaining statutory claim and the OPM’s motion to dismiss that claim, to the extent it is still asserted, is GRANTED.

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Amendment to the United States Constitution does not contain an Equal Protection Clause, the Fifth Amendment’s Due Process Clause includes an equal protection component. See Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”).
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). This principle embodies a commitment to neutrality where the rights of individual persons are at stake. Dragovich v. United States Department of the Treasury, 764 F. Supp. 2d 1178, 1188 (N.D. Cal. 2011) (citing Romer, 517 U.S. at 623.) It is because of this commitment to neutrality that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny. Romer, 517 U.S. at 623. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).
However, courts must balance this mandate with the “practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at 631 (citations omitted). The equal protection guarantee preserves a measure of power to the state and the federal

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government to enact legislation that classifies certain groups. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979). In an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion. Romer, 517 U.S. at 631. To these groups of protected classifications, subject to a heightened scrutiny, the government is required to demonstrate that the classification is substantially related to an important governmental objective. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Laws that do not burden a protected class or infringe on a constitutionally protected fundamental right are subject to rational basis review. Romer, 517 U.S. at 631. Under the rational basis review, a law must be rationally related to the furtherance of a legitimate governmental interest. Id. (citing Heller v. Doe by Doe, 509 U.S. 312, 319-320 (1993)).
In resolving an equal protection challenge, the Court “must first determine what classification has been created” by the legislation. Aleman v. Glickman, 217 F.3d 1191, 1195 (9th Cir. 2000); see also Lazy Y Ranch, 546 F.3d at 589. The plaintiff must show that the “law is applied in a discriminatory manner or imposes different burdens on different classes of people.” Lazy Y Ranch, 546 F.3d at 589 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995)). The Court must then ascertain the appropriate level of scrutiny to em-

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ploy. In re Kandu, 315 B.R. 123, 142 (W.D. Wash. 2004).4
1. Level of Scrutiny.
Here, DOMA makes distinctions between legally married couples, by granting benefits to opposite-sex married couples but denying benefits to same-sex married couples. Accordingly, DOMA treats gay and lesbian individuals differently on the basis of their sexual orientation. In order to determine whether sexual orientation is considered a suspect or quasi-suspect class entitled to heightened scrutiny, the Court must look at various factors.5 The Supreme Court has considered: (1) the his-
4 Ms. Golinski challenges the application of DOMA because it discriminates both on the basis of sex and on the basis of sexual orientation. (Golinski Reply on Motion for Summary Judgment at 7-8.) Sexual orientation discrimination can take the form of sex discrimination. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010) (“Perry”). Here, for example, Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex. But DOMA also operates to restrict Ms. Golinski’s access to federal benefits because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian. Accordingly, the Court addresses the Equal Protection challenge on the basis of sexual orientation.
5 The question of whether DOMA impacts a fundamental right is addressed briefly by the parties but it is not at issue here as it is undisputed that Ms. Golinski is already married under state law. The failure of the federal government to recognize Ms. Golinski’s marriage and to provide benefits does not alter the fact that she is married under state law. Thus, Baker v. Nelson, 409 U.S. 810 (1972), which ostensibly ad-

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tory of invidious discrimination against the class burdened by the legislation; (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society; (3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and (4) the political
dressed whether same-sex couples have a constitutional right to marry, is irrelevant here. See Perry v. Brown, — F.3d —, 2012 WL 372713 at, *17 n.14 (9th Cir. 2012) (“Perry II”).
However, it is established that there is a fundamental right to marry. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”) (citations omitted); Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right.”); Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“[T]he right to marry is of fundamental importance for all individuals.”); Loving v. Virginia, 388 U.S. 1, 12 (1967) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”).
The analysis of the fundamental right to marry has not depended upon the characteristics of the spouse. The Supreme Court cases addressing the fundamental right to marry do not define the fundamental right in narrow terms. In Loving, the Court defined the fundamental right as the right to marry, not the right to interracial marriage. 388 U.S. at 12. In Turner, the fundamental right was the right to marry, not the right to inmate marriage. 482 U.S. at 94-96. In Zablocki, the fundamental right was the right to marry, not the right of people owing child support to marry. 434 U.S. at 383-86.

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power of the subject class. See Varnum v. Brien, 763 N.W.2d 862, 887-88 (Iowa 2009) (collecting cases).
No single factor for determining elevated scrutiny is dispositive. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 321 (1976). The presence of any of the factors is a signal that the particular classification is “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,” thus requiring heightened scrutiny. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Supreme Court has placed far greater weight on two factors:
whether the group has been the subject of longstanding and invidious discrimination and whether the group’s distinguishing characteristic bears no relation to the ability of the group members to perform or function in society. In circumstances in which a group has been subject to such discrimination and its distinguishing characteristic does not bear any relation to such ability, the court inevitably has employed heightened scrutiny in reviewing statutory classifications targeting those groups. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 167-68 (2008).
2. Distinguishing High Tech Gays Finding on Standard of Review.
Before the Court may assess the various factors that apply to determine the appropriate level of scrutiny to apply in this matter, the Court must address the holding in High Tech Gays v. Defense Industrial Security Clearance Office, which addresses the standard of review for classifications based on sexual orientation. 895 F.2d 563,

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571 (9th Cir. 1990). In High Tech Gays, decided before the Supreme Court revised much of the underlying legal preconceptions upon which this case rests, the Ninth Circuit determined that the classification of homosexuals lacks the indicia of a suspect or quasi-suspect category. Accordingly, the Ninth Circuit held that the government need only come forth with a rational basis to sustain its classifications against the gay and lesbian minority. Id.
However, the foundations of the Ninth Circuit’s decision in High Tech Gays have sustained serious erosion by virtue of more recent decisions by the Supreme Court. When the premise for a case’s holding has been weakened, the precedential import of the case is subject to question. District courts are not governed by earlier appellate precedent that has been “undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.” Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).
The linchpin of the reasoning in High Tech Gays was the precedent set by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), which upheld the criminalization of private consensual homosexual conduct. In High Tech Gays, the Ninth Circuit concluded that, based on the holding in Bowers, “because homosexual conduct can . . . be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.” High Tech Gays, 895 F.2d at 571. Pursuant to Supreme Court precedent in Bowers, the Ninth Circuit agreed that “it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm.” Id. at 571 n.6 (quoting Woodward v. United

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States, 871 F.2d 1068, 1076 (Fed. Cir. 1989)). The court concluded that, under the holding of Bowers, it would be anomalous to define the conduct of members of a class as criminal and also find that, as a class, they were deserving of strict or heightened scrutiny under the Equal Protection Clause. See id . (citing Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987)).
However, since the decision in High Tech Gays, the Supreme Court has overruled Bowers, renounced its fundamental premise, and found that “Bowers was not correct when it was decided, and it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). The Lawrence Court found that majority’s moral condemnation of the intimate practices of homosexual partners does not justify criminal prohibition and found those private consensual practices are safeguarded by the liberty protections afforded by the Due Process Clause of the Fourteenth Amendment. Id. at 574-75. Therefore, the reasoning in High Tech Gays, that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence.
In addition, the court in High Tech Gays, in performing the analysis of the issue of whether the legislature’s classification based on homosexuality calls for heightened scrutiny, relied on the mistaken assumption that sexual orientation is merely “behavioral,” rather than the sort of deeply rooted, immutable characteristic that warrants heightened protection from discrimination. See High Tech Gays, 895 F.2d at 573-74. The court found that “[h]omosexuality is not an immutable characteristic; it is behavioral and hence fundamentally different from traits such as race, gender, or alienage, which

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define already existing suspect and quasi-suspect classes. The behavior of such already recognized classes is irrelevant to their identification.” Id. (internal citations omitted). The Supreme Court has since rejected this artificial distinction, noting that its more recent precedent “have declined to distinguish between status and conduct in th[e] context” of sexual orientation. See Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2990 (2010). In Lawrence, the Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” 539 U.S. at 575 (emphasis added); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). Accordingly, the analysis of the Ninth Circuit in High Tech Gays on the appropriateness of applying heightened scrutiny to gay men and lesbians because their defining characteristic is immutable has been severely undermined by more recent and overriding precedent.
The Court finds that the outdated holding in High Tech Gays, subjecting gay men and lesbians to rational basis review, is no longer a binding precedent. See Miller, 335 F.3d at 900 (finding that where an intervening decision of a higher court is clearly irreconcilable with a Ninth Circuit decision, “district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of [the Ninth Circuit] as having been effectively overruled.”).

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3. The Question of Level of Scrutiny is Still Open.
The Supreme Court and the Ninth Circuit have yet to issue binding rulings as to whether classifications based on sexual orientation are suspect (or quasisuspect). See Romer, 517 U.S. at 620, 632-33 (finding that it was unnecessary to look beyond rational basis review because the state’s attempt to strip gay people of all anti-discrimination protections was “a denial of equal protection in the most literal sense” and because it “confound[ed] and defie[d]” rational basis review.”); see also, e.g., Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011) (“We do not need to decide whether heightened scrutiny might be required.”); In re Levenson, 587 F.3d at 931 (finding that although it is “likely that some form of heightened constitutional scrutiny applies . . . [, because] the denial of benefits here cannot survive even rational basis review, the least searching form of constitutional scrutiny . . . it is not necessary to determine whether or which form of heightened scrutiny is applicable to this claim.”); Perry II, 2012 WL 372713, at *17 (finding that, as in Romer, the court need not apply heightened scrutiny where the proposed legislation fails rational basis scrutiny); Dragovich, 764 F. Supp. 2d at 1189 (“Because the Court finds that Plaintiffs state a claim under the rational basis standard, the question of whether Plaintiffs are members of a protected class need not be resolved here.”). The majority of the Supreme Court in Lawrence, although it declared unconstitutional the laws infringing on the substantive liberty shared by gay people to engage in sexual intimacy, did not directly address what standard of review applies to the classification of gay and lesbian individuals. Lawrence, 539 U.S. at 558. And the Ninth Circuit in Witt v. Department of Air Force merely found, in the context of

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military policy where judicial deference “is at its apogee,” that the military’s policy of “Don’t Ask Don’t Tell” would fail even rational basis review. 527 F.3d 806, 821 (9th Cir. 2008).
Because Lawrence overturned Bowers and in light of the lack of precedential value of High Tech Gays, no federal appellate court has meaningfully examined the appropriate level of scrutiny to apply to gay men and lesbians. Therefore, the Court finds the question of what level of scrutiny applies to classifications based on sexual orientation is still open.
4. Heightened Scrutiny Should Apply.
The Court undertakes to analyze the factors required to demonstrate whether a particular class is entitled to suspect or quasi-suspect status and therefore deserving of heightened scrutiny.
a. History of discrimination against gay men and lesbians.
The first factor courts consider is whether the class has suffered a history of discrimination. There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination. (See Declaration of George Chauncey at ¶¶ 6-103; OPM Opp. Br. at 6-13.) There is also no dispute that courts have found that gay men and lesbians have experienced a history of discrimination. See, e.g., High Tech Gays, 895 F.2d at 573 (acknowledging that “homosexuals have suffered a history of discrimination”); Witt, 527 F.3d at 824-25 (noting that homosexuals have “experienced a history of purposeful unequal treatment”); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009)

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(addressing the difficulty in denying that gay men and lesbians have experienced discrimination in the past in light of the Ninth Circuit’s ruling in High Tech Gays); Perry, 704 F. Supp. 2d at 981-82 (acknowledging extensive evidence of public and private discrimination against gay men and lesbians in California and throughout the United States); see also In re Balas, 449 B.R. 567, 576 (Bankr. C.D. Cal. 2011) (same).
b. Ability to contribute to society.
Similarly, there is no dispute in the record or the law that sexual orientation has no relevance to a person’s ability to contribute to society. See Watkins v. U.S. Army, 875 F.2d 699, 725 (9th Cir. 1989) (“Sexual orientation plainly has no relevance to a person’s ability to perform or contribute to society.”) (internal quotation marks omitted); Perry, 704 F. Supp. 2d at 1002 (concluding that “by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”).
c. Defining or immutable characteristics.
Another consideration courts find relevant in determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny includes whether the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within the members’ control. See Lyng v. Castillo, 477 U.S. 635, 638 (1986).
Ms. Golinski presents evidence that the characteristic of sexual orientation is immutable or highly resistant to change. (See Declaration of Lisa Diamond at ¶¶ 10, 13; Declaration of Letitia Anne Peplau at ¶¶ 21, 26; Rita

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Lin Reply Declaration (“Lin Reply Decl.”), Ex. G.) Further, the consensus in the scientific community is that sexual orientation is an immutable characteristic. See, e.g., G.M. Herek, et al. Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176-200 (2010) (noting that in a national survey, 95 percent of gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “very little choice” about their sexual orientation); see also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.”)
BLAG presents evidence demonstrating that there is some fluidity on the continuum of sexuality for some individuals who identify themselves as gay or lesbian. (See Declaration of Conor B. Dugan (“Dugan Decl.”), Ex. B at 36:14-38, Ex. 4, Ex. E at 320.) The evidence indicates that a very small minority of the gay and lesbian population may experience a small amount of choice in their sexuality. (Id.) However, the vast majority of those who self-reported as gay or lesbian did not experience attraction to the opposite sex at any time. (See Further Declaration of Letitia Anne Peplau at ¶ 6 (“data show that only 1/2 of 1% of the male participants and 1.3% of the female participants shifted from only opposite sex attraction to major attraction to the same sex or vice versa.”)).
However, regardless of the evidence that a tiny percentage of gay men or lesbians may experience some flexibility along the continuum of their sexuality or the scientific consensus that sexual orientation is unchange-

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able, the Court finds persuasive the holding in the Ninth Circuit that sexual orientation is recognized as a defining and immutable characteristic because it is so fundamental to one’s identity. “Sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); see also Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005) (agreeing with Hernandez-Montiel and finding that homosexuality is “a fundamental aspect of . . . human identity”); Watkins, 875 F.2d at 726 (Norris, J., concurring) (finding that the prong of suspectness inquiry is satisfied when the identifying trait is “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it]”); In re Marriage Cases, 43 Cal. 4th 757, 842 (2008) (“Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”) The Court finds that a person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it. Therefore, this factor weighs in favor of the application of heightened scrutiny.6
6 In addition, immutability is not an absolute prerequisite to heightened scrutiny. The Supreme Court has granted suspect class status to groups whose distinguishing characteristic is not immutable. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting immutability requirements in treating group of resident aliens as suspect class despite their ability to opt out of class voluntarily); see also Miller v. Albright, 523 U.S. 420, 431 (1998) (recognizing that because a child born out of

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d. Minority status and political powerlessness.
The final consideration employed by courts to determine whether a subject group deserves heightened constitutional scrutiny is whether the subject group is “a minority or politically powerless.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973) (concluding that a class comprising poor families exhibits none of the “traditional indicia of suspectness” because class is not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”) This factor examines relative political power and seeks to answer the question whether the “discrimination is unlikely to be soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440.7
wedlock may be “legitimated” by father, strictly speaking illegitimacy is not an immutable characteristic); see also New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (finding religious identification and alienage, despite being changeable, to constitute suspect classes).
7 In High Tech Gays, the Ninth Circuit briefly addressed the factor of political powerlessness: “legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation. Thus, homosexuals are not without political power; they have the ability to and do ‘attract the attention of lawmakers,’ as evidenced by such legislation.” 895 F.2d at 574 (citing City of Cleburne, 473 U.S. at 445). However, the very circumstance of gay men and lesbians being required to defend their interests against legislative action is a reflection of relative political weakness. (Declaration of Gary Segura (“Segura Decl.”) at ¶ 14.) In addition, the standard is not whether a minority group is entirely powerless, but rather whether they suffer from relative political weakness. See Rodriguez, 411 U.S. at 28; City of

30a There is no dispute in the record that gay men and lesbians are a minority of the population in the United States. (See Dugan Decl., Ex. A at 13:12-14, Ex. B at 19:2-7.) The only issue is whether the minority is politically vulnerable or lacking in power. The Court has reviewed the evidence submitted by the parties for consideration on this factor. BLAG argues that the current Administration’s reversal of position with regard to defending DOMA in various courts nationwide is evidence that gay and lesbian individuals have achieved political power. BLAG contends that the decision followed President Obama’s receipt of a letter from the Human Rights Campaign seeking to change the Administration’s position. (BLAG Opp. Br. at 12.) However, this contention is not supported by the evidence in the record. First, this letter was sent nearly two years prior to the announcement of the Administration’s current opinion. (Lin Reply Decl., Ex. H at 166:16-167:13.) Second, the Department of Justice functions under an independent obligation to assess the constitutionality of a statute it has been tasked to defend. By its own terms, the announcement by the Department of Justice was based not on a political calculation, but rather was an independent assessment of the constitutionality of DOMA. (See NSA, Ex. 1 at 1-2.) The contention that a two-year-old letter from a gay rights advocacy group was the pivotal consideration in the Administration’s reassessment of the law or that it demonstrates that gay men and lesbians have political power is speculative at best.
Cleburne, 473 U.S. at 445.

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BLAG also argues that a “spate of recent news stories only confirms the conclusion that homosexuals are far from politically powerless.” (BLAG Opp. Br. at 12.) BLAG lists the nomination of four openly-gay judges, the laws in several states legalizing gay marriage, and the campaign against Proposition 8 in California which garnered significant funding from proponents of same-sex marriage. (Id. at 12-15.)
The recent articles BLAG cites are exceptions and not the rule. While President Obama nominated four openly-gay judges, there are literally hundreds of federal judges nationwide. Only a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian individuals through judicial decisions. Thirty states have passed constitutional amendments banning same-sex marriage. (See OPM Opp. Br. at 15, citing National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www. ncsl.org/default.aspx?tabid_16430 (last updated February 13, 2012)). In contrast, when the Supreme Court ruled in Loving, interracial marriage was legal in thirty-four states. See Loving, 388 U.S. at 6. Moreover, there is no federal anti-discrimination legislation and no protection in most states from sexual orientation discrimination. (See OPM Opp. Br. at 6-12.) Finally, while the campaign against Proposition 8 may have raised significant funds, the majority of Californians still voted to alter the state constitution to strip gay and lesbian individuals of their rights. Placed in context, BLAG’s evidence does not create a question of fact.

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Despite the modest successes in remediating existing discrimination, the record demonstrates that gay men and lesbians continue to suffer discrimination “unlikely to be rectified by legislative means.” City of Cleburne, 473 U.S. at 440. Even BLAG, in similar litigation, has admitted that “gay men and lesbians often must rely on judicial decisions to secure equal rights.” (Lin Reply Decl., Exs. C and D at ¶ 32.) Ms. Golinski proffers the undisputed and extensive expert testimony of Gary Segura for the proposition that gay men and lesbians lack a meaningful degree of political power. (See Segura Decl. at ¶¶ 9-85.) In sum, the basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals. (Id. at ¶ 28.)
Ms. Golinski also proffers the letter from the Attorney General to Congress regarding DOMA and the Department of Justice’s determination that it would no longer provide a defense of a statute which it considered to be unconstitutional. (See NSA, Ex. 2.) In the letter, the Attorney General, speaking on behalf of the Executive, notes that “the adoption of the laws like those at issue in Romer and Lawrence, the longstanding ban on gay men and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and ‘ability to attract the [favorable] attention of the lawmakers.’ ” (Id. at 2, citing City of Cleburne, 473 U.S. at 445.)

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The Court finds that the unequivocal evidence demonstrates that, although not completely politically powerless, the gay and lesbian community lacks meaningful political power. In 1985, in their dissent from a petition for writ of certiorari, Justices Brennan and Marshall found that “homosexuals constitute a significant and insular minority of this country’s population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland v. Mad River Local School District, 470 U.S. 1009, 1014 (1985). The Court agrees and finds that, as a class, gay men and lesbians are a minority and have relatively limited political power to attract the favorable attention of lawmakers. See City of Cleburne, 473 U.S. at 445. Although this factor is not an absolute prerequisite for heightened scrutiny, the Court finds the evidence and the law support the conclusion that gay men and lesbians remain a politically vulnerable minority. See Plyler, 457 U.S. at 216 n.14; Murgia, 427 U.S. at 321.
Here, having analyzed the factors, the Court holds that the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny. See also In re Levenson, 587 F.3d at 931 (holding that “some form of heightened constitutional scrutiny applies”); Witt, 527 F.3d at 824-25 (Canby, J., concurring in part and dissenting in part) (“classifications against homosexuals are suspect in the equal protection sense” as gay and lesbian individuals have “experienced a history of purposeful unequal treatment [and] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” and “they also exhibit obvious,

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immutable, or distinguishing characteristics that define them as a discrete group; and they are a minority.”). In short, this Court holds that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority. See id . at 825.
5. Application of Heightened Scrutiny to Justifications Proffered for DOMA.
Under heightened scrutiny, the proponents of the statute must establish, at a minimum, that the classification is “substantially related to an important governmental objective.” Clark, 486 U.S. at 461. Moreover, under any form of heightened scrutiny, the statute may only be defended by reference to the actual legislative bases advanced to legitimate the statute or the “actual [governmental] purpose, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996). The Court notes that the “historical background of the decision” to enact legislation and the “specific sequence of events leading up to the challenged decision” may shed light on the decisionmakers’ purposes. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). Here, the legislative history is replete with expressed animus toward gay men and lesbians.
The House Report on DOMA reflected Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” H.R. Rep. No. 104-664, at 16 (footnote omitted). In his expression of these objectives, Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they

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express their disapprobation through the law.” 142 Cong. Rec. H7480 (daily ed. July 12, 1996).
In the floor debate, members of Congress repeatedly expressed their disapprobation of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and “an attack upon God’s principles.” 142 Cong. Rec. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 Cong. Rec. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); id. at H7494 (statement of Rep. Smith). Members of Congress argued that marriage by gay men and lesbians would “demean” and “trivialize” heterosexual marriage and might indeed be “the final blow to the American family.” 142 Cong. Rec. H7276 (daily ed. July 11, 1996) (statement of Rep. Largent); 142 Cong. Rec. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devaluate the love between a man and a woman and weaken us as a Nation.”). Senator Helms, in a statement prepared for the hearing, expressed his disapprobation: “[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . At the heart of this debate is the moral and spiritual survival of this Nation.” 142 Cong. Rec. S10,110 (daily ed. Sept. 10, 1996); see also 142 Cong. Rec. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across the country.”). The House Report on the pending DOMA bill stated: “Civil laws that permit only heterosexual marriage reflect and honor a col-

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lective moral judgment about human sexuality. This judgment entails [a] moral disapproval of homosexuality.” H.R. Rep. 104-664, at 15-16. The Report further stated that “same-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate.” Id. at 16.
Despite the expressed animus against gay men and lesbians within the legislative history of DOMA, Congress also specifically identified four governmental interests to be advanced by the statute: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. See H.R. Rep. No. 104-664, at 12-18.
a. Responsible procreation and child-rearing.
The first reason proffered by Congress when enacting DOMA was to encourage responsible procreation and child-rearing.
Ms. Golinski presents evidence that it is “beyond scientific dispute” that same-sex parents are equally capable at parenting as opposite-sex parents. (See Declaration of Michael Lamb (“Lamb Decl.”) at ¶ 14.) The evidence presented by Professor Lamb demonstrates that parents’ genders are irrelevant to children’s developmental outcomes. (See id . at ¶¶ 28, 38; Reply Declaration of Michael Lamb (“Lamb Reply Decl.”) at ¶¶ 8, 19, 28.) More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by samesex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by

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opposite-sex parents. (See Lamb Decl. at ¶¶ 29-32.) “There is . . . no empirical support for the notion that the presence of both male and female role models in the home promotes children’s adjustment or well-being.” (Id. at ¶ 14.) “Since 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.” Gill, 699 F. Supp. 2d at 388; see also Perry, 704 F. Supp. 2d at 1000 (“The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”); Varnum, 763 N.W.2d at 899 n.26 (“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”).
BLAG argues that there are flaws in the studies proffered by Ms. Golinski’s expert, Professor Lamb, comparing gay or lesbian parents to opposite-sex parents, based on methodological challenges. The first alleged flaw is that there have been fewer studies of gay male parents than there have been of lesbian family research. (See Lamb Reply Decl. at ¶ 7; see also Lin Reply Decl., Ex. K at 76:6-17.) Whether this is the case does not impact the validity of the studies performed. (See Lamb Reply Decl. at ¶ 8.) The second flaw as argued by BLAG is that there are fewer studies on adolescents than on younger children. However, it remains

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undisputed that “there are several . . . studies that have looked at adolescent offspring living with same-sex parents” and those studies have “uniformly reported positive outcomes.” (See id . at ¶¶ 9-10; see also Lin Reply Decl., Ex. K at 82:15-83:21.) The third criticism is that Professor Lamb indicates the need for further studies. This does not impact the validity of the studies already performed. (See Lamb Reply Decl. at ¶ 12.) The Court finds that these criticisms of the studies relied upon by Professor Lamb do not alter their validity. “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. The Court finds BLAG’s critique does not create an issue of fact.
Further, BLAG cites three sources for the proposition that same-sex parenting is inferior to opposite-sex parenting. One is an article from Slate.com in which the author contends that the existing science is methodologically flawed and ideologically skewed. (See Ann Hulbert, The Gay Science: What Do We Know About the Effects of Same-Sex Parenting?, Slate (Mar. 12, 2004), available at http://www.slate.com/id/2097048/.) This is a three-page, non-scientific article by an author with no professional expertise in child development, published by a popular online magazine without peer review. (See Lamb Reply Decl. at ¶ 15.) Another reference by BLAG is an article criticizing the sampling size in the studies relied upon by Professor Lamb. As Professor Lamb explains, such sampling is typical of psychological research and a number of the studies he relied upon do use representative sampling. (See id . at ¶ 16.) The last source is an unpublished piece by Professor Loren

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Marks in which he criticizes a brief issued by the American Psychological Association in 2005 concluding that social science research indicates that gay parents provide a home environment equally likely to support children’s psychological and social growth. (See BLAG Opp. Br., Ex. 2.) The critique is neither a study nor published in a peer-reviewed journal and its questionable analysis is based on outdated and selectively-chosen data. (See Lamb Reply Decl. at ¶¶ 20-27.) The piece also ignores many of the studies relied upon by Professor Lamb regarding the conclusion that parents’ sexual orientation is unrelated to their children’s adjustment. (See id . at ¶¶ 21-27.) Having reviewed the evidence presented, the Court concludes that all three publications merely criticize the studies relied upon Professor Lamb. As stated above, the criticism merely goes to the weight of Ms. Golinski’s evidence. The publications do not present any independent affirmative evidence necessary to create a genuine issue of disputed fact regarding whether samesex married couples function as responsible parents.
Furthermore, to the extent Congress was interested merely in encouraging responsible procreation and child-rearing by opposite-sex married couples, a desire to encourage opposite-sex couples to procreate and raise their own children well would not provide a legitimate reason for denying federal recognition of same-sex marriages. The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting, but rather merely serves to endanger children of same-sex parents by denying them “ ‘the immeasurable advantages that flow from the assurance of a stable family structure,’ when afforded equal recognition under federal law.” Gill, 699 F. Supp. 2d at 389 (quoting Goodridge v. Department of

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Public Health, 440 Mass. 309, 335 (2003)). It is undisputed that same-sex parents can and do have and adopt children. The denial of federal recognition of valid same-sex marriages under state law does not alter parental rights under state law. Rather, the passage of DOMA only serves to undermine providing a stable environment for children of same-sex married couples whose children would otherwise be raised in a household bestowed with all of the federal benefits of marriage, including financial support and social recognition. (See Lamb Decl. at ¶ 42.)
Furthermore, an interest in promoting procreation within marriage cannot provide a legitimate reason to exclude same-sex marriages from federal recognition. The ability to procreate cannot and has never been a precondition to marriage. See Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (stating “what justification could there possibly be for denying the benefits of marriage to homosexual couples . . . [s]urely not the encouragement of procreation, since the sterile and the elderly are allowed to marry”). “While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Dragovich, 764 F. Supp. 2d at 1190 (citing Goodridge, 440 Mass. at 332). The federal government has never considered withdrawing its recognition of marriage based on an ability or inability to procreate. See id .; see also Gill, 699 F. Supp. 2d at 389. Even if this could be considered a legitimate interest, denying federal recognition of and withholding federal benefits from legally married same-sex couples does

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nothing to encourage or discourage opposite-sex couples from having children within marriage.
Accordingly, the Court finds that the first proffered reason for the passage of DOMA—to encourage responsible procreation and child-rearing—does not provide a justification that is substantially related to an important governmental objective.
b. Nurturing the institution of traditional, opposite-sex marriage.
The second reason proffered by Congress when passing DOMA, was its asserted interest in defending and nurturing traditional, opposite-sex marriage. Tradition alone, however, cannot form an adequate justification for a law. See Williams v. Illinois, 399 U.S. 235, 239 (1970); Romer, 517 U.S. at 635; Lawrence, 539 U.S. at 579. The “ancient lineage” of a classification does not render it legitimate. Heller, 509 U.S. at 327. Instead, the government must have an interest separate and apart from the fact of tradition itself.
In addition, the ostensible governmental objective of fostering opposite-sex marriages remains unaffected by the passage of DOMA. DOMA does nothing to encourage same-sex married individuals to marry members of the opposite sex because they are already married to a member of the same sex. Nor does the denial of benefits to same-sex couples do anything to encourage opposite-sex couples to get married. See Gill, 699 F. Supp. 2d at 389; see also In re Levenson, 587 F.3d at 932 (“gays and lesbians will not be encouraged to enter into marriages with members of the opposite sex by the government’s denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from

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entering into same-sex marriages; so, the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage.”); see also Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”).
Accordingly, the Court does not find that the second proffered reason for the passage of DOMA—to defend and nurture the institution of traditional, opposite-sex marriage—provides a justification that is substantially related to an important governmental objective.
c. Defending traditional notions of morality.
The third reason proffered by Congress when passing DOMA was its asserted interest in defending traditional notions of morality. Basing legislation on moral disapproval of same-sex couples does not pass any level of scrutiny. “The animus toward, and moral rejection of, homosexuality and same-sex relationships are apparent in the Congressional record.” See Dragovich, 764 F. Supp. 2d at 1190. “[M]oral condemnation of homosexuality [does not] provide the requisite justification for the DOMA’s section three. The ‘bare desire to harm a politically unpopular group’ is not a legitimate [governmental] interest.” Id. (quoting Romer, 517 U.S. at 634-35). The condemnation of homosexuality as immoral
has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which

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they aspire and which thus determine the course of their lives. . . . The issue is whether the majority may use the power of the [government] to enforce these views on the whole society through operation of the . . . law. Lawrence, 539 U.S. at 571. The Court concludes it can not. The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is “to define the liberty of all, not to mandate our own moral code.” Casey, 505 U.S. at 850. “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’ ” Lawrence, 539 U.S. at 582 (O’Connor, J., concurring) (quoting Romer, 517 U.S. at 633). “[T]he fact that the governing majority . . . has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence, 539 U.S. at 577-78. Accordingly, the Court does not find that the third proffered reason for the passage of DOMA—to defend traditional notions of morality—provides a justification that is substantially related to an important governmental objective.
d. Preserving scarce government resources.
The final reason proffered by Congress for passing DOMA was the preservation of scarce government resources. However, there is no evidence in the record to demonstrate that the provision of federal benefits to

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same-sex married couples would adversely affect the government fisc. In addition, the preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program. Plyler, 457 at 227, 229. “[A]lhough efficacious administration of governmental programs is not without some importance, ‘the Constitution recognizes higher values than speed and efficiency.’ ” Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (citing Stanley v. Illinois, 405 U.S. 645, 656 (1972)). Under heightened scrutiny, convenience and economic efficiency in the administration of governmental programs do not legitimize differential treatment. See id . at 690-91.
Accordingly, the Court does not find that the fourth proffered reason for the passage of DOMA—to preserve scarce government resources—provides a justification that is substantially related to an important governmental objective.
The Court concludes that, based on the justifications proffered by Congress for its passage of DOMA, the statute fails to satisfy heightened scrutiny and is unconstitutional as applied to Ms. Golinski.
D. In the Alternative, DOMA Fails Under Rational Basis Review.
Although the Court finds that DOMA is subject to and fails to satisfy heightened scrutiny, it notes that numerous courts have found that the statute fails even rational basis review.
1. Standards for Rational Basis Scrutiny.
Where a law neither burdens a fundamental right nor targets a suspect class, a court shall uphold the legisla-

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tive classification so long as it bears a rational relation to some legitimate end. Heller, 509 U.S. at 319-320. Under the rational basis standard of review, legislative enactments are accorded a strong presumption of validity. Id. Courts “are compelled under rational-basis review to accept a legislature’s generalizations even where there is an imperfect fit between means and ends.” Id. (internal citations omitted). Indeed, a court applying rational basis review may “go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.” Gill, 699 F. Supp. 2d at 387 (citing Shaw v. Oregon Public Employees’ Retirement Board, 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted)). “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rational basis review is “a paradigm of judicial restraint” and “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Id. at 313-14. “Nor does it authorize ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” Heller, 509 U.S. at 319 (quoting Dukes, 427 U.S. at 303).
“ ‘[T]he burden of establishing the unconstitutionality of a statute rests on him who assails it.’ ” Baker v. Carr, 369 U.S. 186, 266 (1962) (quoting Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935)). The bur-

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den is to “ ‘negative every conceivable basis which might support it,’ whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320-21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). “A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. at 321 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). “The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” Id. (citing Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913)). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Id. (citing McGowan v. Maryland, 366 U.S. 420, 426 (1961)).
However, rational review is not “toothless.” Mathews v. de Castro, 429 U.S. 181, 185 (1976). “A statutory classification fails rational-basis review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’ s objective.’ ” Heller, 509 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)). Rational basis review requires that the legislation not be enacted for arbitrary or improper purposes. In order for a law to be legitimate, it must be “properly cognizable” by the government asserting it and “relevant to interests” it “has the authority to implement.” City of Cleburne, 473 U.S. at 441. The law must bear a logical relationship to the purpose it purports to advance. Romer, 517 U.S. at 632-33; see also Gill, 699 F. Supp. 2d at 387. “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.”

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Gill, 699 F. Supp. 2d at 387 (quoting Romer, 517 U.S. at 633). Lastly, the justification for the law may not rely on factual assumptions that exceed the bounds of rational speculation. Lewis v. Thompson, 252 F.3d 567, 590 (2d Cir. 2001) (citing Heller, 509 U.S. at 320 (holding that speculation, while permissible, must be “rational”)).
When applying rational basis review to a classification that adversely affects an unpopular group, courts apply a “more searching” rational basis review. Diaz, 656 F.3d at 1012. With these protections, courts may thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633 (citing Railroad Retirement Board v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”)).
2. Application of Rational Basis Review to Justifications Proffered by Congress.
The Court has already addressed the four interests proffered by Congress during the passage of DOMA and found them not to be substantially related to an important governmental objective. Similarly, under the rational basis review, the Court finds that none of Congress’ proffered justifications constitute a rational relation in furtherance of some legitimate governmental end. See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319-320).
Specifically, the Court finds that Congress’ justification of promoting traditional notions of morality does not satisfy rational basis scrutiny. See Lawrence, 539

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U.S. at 582 (holding that “[m]oral disapproval of [homosexuals], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”) Also, if the denial of benefits is designed to defend traditional notions of morality by discouraging same-sex marriage, “it does so only by punishing same-sex couples who exercise their rights under state law, and thus exhibits the ‘bare desire to harm’ same-sex couples.” In re Levenson, 587 F.3d at 932 (emphasis in original). This is forbidden by the Constitution. See Romer, 517 U.S. at 634-35. “Discouraging gay marriage serves only to force gay couples to live in a ‘state of sin’ rather than in a lawfully-recognized ‘state of connubial bliss’ that encourages a long-enduring permanent relationship that, in turn, serves as the basis of a state-recognized family.” In re Levenson, 587 F.3d at 932. The promotion of morality is not a cognizable governmental interest furthered by the denial of federal benefits and protections.
Similarly, the Court does not find the justification of preserving the government fisc satisfies rational basis review. See Lyng v. International Union, 485 U.S. 360, 376-77 (1988) (holding that previous cases make “clear that something more than an invocation of the public fisc is necessary to demonstrate the rationality of selecting [one group], rather than some other group, to suffer the burden of cost-cutting legislation.”). Ostensible savings to the government fisc that depends upon “distinguishing between homosexual and heterosexual [couples], similarly situated, . . . cannot survive rational basis review.” See Diaz, 656 F.3d at 1014.8
8 During oral argument, counsel for BLAG argued that another possible justification for DOMA, somewhat related to protection of the

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a. Responsible procreation and child-rearing.
In arguing its defense of DOMA, BLAG, for the most part, eschews the justifications proffered by Congress for the legislation. However, the group does reiterate the legislative justifications of encouraging responsible procreation and child-rearing and the government’s interest in defending and nurturing the institution of traditional, heterosexual marriage.
The Court does not find the justification of encouraging responsible procreation and child-rearing survives rational basis scrutiny. Even if the Court were to accept as true, which it does not, that opposite-sex parenting is somehow superior to same-sex parenting, DOMA is not rationally related to this alleged governmental interest.
Under rational basis review, although the fit between the classification and the stated government interest need not be perfect, the classification must be “narrow enough in scope and grounded in sufficient factual context . . . to ascertain some relation between the classification and the purpose it serve[s].” Romer, 517 U.S. at 632-33. Rational basis review invalidates a measure
public fisc, is “to rationally maintain bargains that were decided upon by previous Congresses. . . . There were bargains made, and there were calculus [sic] made in terms of . . . what benefits are we going to give, what burdens are we going to put on people.” (Transcript at 59.) The decision of where and how to protect the government fisc and to protect the bargains struck by previous Congresses does not independently constitute a rational basis upon which to differentiate among classes of citizens. See Diaz, 656 F.3d at 1014; see also Plyler, 457 U.S. at 227, 229 (holding that preservation of government resources cannot, as a matter of law, justify barring some arbitrarily chosen group from a government program). There must be some rational basis upon which to decide not to expend public resources for a particular group.

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whose “sheer breadth” is “discontinuous with the reasons offered for it.” Id. at 632, 635 (rejecting justifications where “[t]he breadth of the [measure] is so far removed from these particular justifications that we find it impossible to credit them”); see also Eisenstadt v. Baird, 405 U.S. 438, 449 (1972) (rejecting justification of law discriminating between married and unmarried individuals in access to contraceptives as “so riddled with exceptions” that the interest claimed by the government “cannot reasonably be regarded as its aim”).
DOMA has no effect on who may become a parent under federal or state law. Moreover, whether a samesex couple is entitled to marriage benefits has no rational relation to that couple’s or an opposite-sex couple’s ability to procreate. Significantly, to reiterate, the ability to procreate has never been a precondition to marriage in any jurisdiction. See Lawrence, 539 U.S. at 605 (Scalia, J. dissenting).9 Here, there is simply no connection between the ability (or capacity) to become a parent and the designation of federal entitlements based on a definition of marriage that excludes legally married couples who are capable of becoming parents.
9 During oral argument, counsel for BLAG argued that an additional reason for the passage of DOMA was the fact that opposite-sex married couples could “have accidental pregnancies” or “can make babies spontaneously.” (Transcript at 63-64.) BLAG did not, however, articulate how the fact that opposite-sex couples can have accidental pregnancies constitutes an interest supporting the passage of DOMA. Although the generation of children may be biologically more spontaneous with opposite-sex couples, married or unmarried, the Court remains perplexed how the uniformly deliberate decision of same-sex married couples to become parents can be perceived as a justification against supporting their procreation and child-rearing efforts.

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Denying federal benefits to same-sex married couples has no rational effect on the procreation and childrearing practices of opposite-sex married (or unmarried) couples. See Perry II, 2012, WL 372713, at *21 (“There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging . . . opposite-sex couples to procreate more responsibly.”) To the extent some people may have a bias in favor of preferring biological parents over other couples, there is no such recognition of this distinction under federal or state law. See id . There has been no showing that DOMA alters any state or federal law governing childbearing, procreation or family structure. Given the state of the law, the rationale of promoting responsible child-rearing finds no “ ‘footing in the realities of the subject addressed by the legislation,’ and thus cannot be credited as rational.” Perry II, 2012 WL 372713, at *20 (citing Heller, 509 U.S. at 321).
Accordingly, the Court finds that Congress’ stated justification of encouraging responsible procreation and child-rearing bears no rational relationship to the classification which burdens same-sex married couples.
b. Nurturing the institution of traditional, opposite-sex marriage.
BLAG contends that the institution of opposite-sex marriage is deeply rooted in American law, embedded in history and tradition, and has been defined both by Black’s Law Dictionary and the Bible. (BLAG Motion to Dismiss at 23-24, citing Marsh v. Chambers, 463 U.S. 783, 792 (1983) (holding that traditional marriage “is deeply embedded in the history and tradition of this country” and “has become part of the fabric of our soci-

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ety”) and Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (holding that the “institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”)).
Again, the argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification. Simply stating what has always been does not address the reasons for it. The mere fact that prior law, history, tradition, the dictionary and the Bible have defined a term does not give that definition a rational basis, it merely states what has been. Tradition, standing alone, does not provide a rational basis for the law. Williams, 399 U.S. at 239. Simply, the “ancient lineage” of the law does not render it rational. See Heller, 509 U.S. at 327.
BLAG argues, but does not explain how denying marriage benefits only to same-sex couples will somehow make marriage between opposite-sex couples better. The proffered justification may derive from strongly-held religious or fundamentally traditional beliefs, but still does not provide a legally recognizable rational basis for sustaining a law that actively discriminates against legally married couples. The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages. See Perry II, 2012 WL 372713, at *23 (holding that “the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality”); see also Perry, 704 F. Supp. 2d at 972 (“Permitting same-sex couples to marry will not affect the number of oppo-

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site-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”); In re Levenson, 587 F.3d at 932 (this governmental interest “is largely irrelevant to the rational basis analysis here because the same-sex couples who seek the benefits are already married. Also, gays and lesbians will not be encouraged to enter into marriages with members of the opposite sex by the government’s denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from entering into same-sex marriages; so the denial cannot be said to ‘nurture’ or ‘defend’ the institution of heterosexual marriage.”).
Accordingly, the Court finds that Congress’ stated justification of nurturing the institution of traditional, opposite-sex marriage bears no rational relationship to the classification which burdens same-sex married couples.
3. Application of Rational Basis Review to Alternative Justifications Proffered by BLAG.
BLAG does not rely exclusively on the stated legislative justifications advanced by Congress during its passage of DOMA. A court may “hypothesize the motivations of the . . . legislature to find a legitimate objective promoted by the provision under attack.” Shaw, 887 F.2d at 948-49 (internal quotation marks and citation omitted). “[I]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Beach Communications, 508 U.S. at 313. In this regard, BLAG has proffered several additional hypothetical rational bases for passing DOMA.

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a. Congressional caution in defining a legislative term and maintaining the status quo.
BLAG contends that Congress could have had a rational basis for the passage of DOMA by preserving the status quo in the federal definition of marriage while waiting for the states to “tinker with the substantive centuries-old definition of marriage.” (BLAG Opp. Br. on Motion for Summary Judgment at 22.) To the extent this argument is premised upon preserving a traditional definition of marriage for its own sake, the Court has already rejected this argument. As the court found in Gill, “[s]taying the course is not an end in and of itself, but rather a means to an end.” Gill, 699 F. Supp. 2d at 390-94. The long history of discrimination against gay men and lesbians does not provide a rational basis for continuing it.
Moreover, DOMA does not preserve the status quo. The passage of DOMA marks a stark departure from tradition and a blatant disregard of the well-accepted concept of federalism in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392 (finding that DOMA “mark[ed] the first time the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter”); see also Dragovich, 764 F. Supp. 2d at 1189 (“[S]ection three of DOMA was a preemptive strike to bar federal legal recognition of same-sex marriages should certain states decide to allow them, rather than a law that furthered the status quo, which gave the states authority to define marriage for themselves.”).
The status quo prior to the passage of DOMA was federal recognition of the individual states’ authority to

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define marriage. “The whole subject of the domestic relations . . . belongs to the laws of the States and not to the laws of the United States.” Elk Grove Unified School District v. Newdow, 542 U.S. 1, 12 (2004) (citation omitted); see also Sosna v. Iowa, 419 U.S. 393, 404 (1975) (holding that “domestic relations” have “long been regarded as a virtually exclusive province of the States” and “[t]he State . . . has absolute right” to regulate marriage) (citations omitted); Ankenbrandt v. Richards, 504 U.S. 689, 703, 716 (1992) (“declarations of status, e.g., marriage, annulment, divorce, custody, and paternity,” lie at the “core” of domestic relations law reserved to the states) (Blackmun, J., concurring).
Prior to the enactment of DOMA, the federal government had not attempted to craft its own federal definition of marriage, “notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.” Gill, 699 F. Supp. 2d at 392. Congress accepted without revision the patchwork of different state marriage definitions regarding, for example, age requirements or marriage among related persons. (See e.g., Declaration of Nancy Cott (“Cott Decl.”) at ¶¶ 26, 51-52, 56-57.) The federal government has continued to defer to the states during unprecedented, hotlycontested shifts in state marriage law, especially in the area of interracial marriage. (Id. at ¶¶ 57.) The strong tradition of federalism mandated that the federal government refrain from inserting itself in the business of domestic relations.10
10 BLAG contends that Congress has previously enacted laws which create unique federal definitions of marriage, for instance in the area federal tax regulations, Social Security, immigration or federal benefits.

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The Court finds that the passage of DOMA, rather than maintaining the status quo in the arena of domestic relations, stands in stark contrast to it. Accordingly, the Court finds that Congressional caution in defining a legislative term and maintaining the status quo does not constitute a rational basis.
b. Congressional caution in area of social divisiveness.
BLAG also contends that Congress should remain cautious, especially in an area of so much social divisiveness, by holding the purported federal definition of marriage steady while waiting to see how the states tinker with new definitions. The Court finds the contention similar to arguments that were advanced in support of antimiscegenation laws. Proponents similarly argued that the long-standing tradition of the separation of the
However, in each instance, the federal government accepted the state definitions of marriage and merely superimposed further requirements for falling within the federal entitlement statute. See, e.g., 42 U.S.C. § 416 (requiring marriage of at least one year to obtain certain Social Security benefits); 8 U.S.C. § 1186a(b)(1) (discrediting marriages entered into merely to obtain immigration status). These federal requirements do not purport to redefine or create a federal definition of marriage, but rather impose additional criteria to further particular legislative goals.
In addition, BLAG cites examples in which Congress legislated in the area of domestic relations, such as when it banned polygamy in the Utah Territory, when it promoted and supported marriages of former slaves after the Civil War, and legislation in the context of treatment of Indians tribes. However, in each of those unique historical instances, Congress was acting in the role of the state in the absence of a secure state government. (See, e.g., Cott Decl. at ¶¶ 75-79.) DOMA marks a radical departure from the tradition of federalism in the area of domestic relations. See Gill, 699 F. Supp. 2d at 392.

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races provided justification for prohibiting interracial marriage. The lower court in Loving found that God had created the races and placed them on separate continents in order that there “would be no cause for such [interracial] marriages.” 388 U.S. at 3. It was, at the time, a strongly-held belief among proponents of antimiscegenation laws that mixing the races was against God’s will, flaunted a long history of tradition and, at its core, endangered the institution of marriage. See id . However, in its holding in Loving, the Supreme Court found that although interracial marriage was a socially divisive issue and proponents of antimiscegenation held traditional and religious beliefs about the erosion of the traditional concept of marriage, Virginia’s racial classification violated the equal protection guarantee. Id . at 11-12.
More recently, in Romer, the Supreme Court addressed a proposed amendment to the Colorado state constitution that would prohibit all legislative, executive, or judicial action designed to protect discrimination against homosexuals. One of the arguments in support of the state amendment was that it was an attempt to withdraw “a deeply divisive social and political issue from elected representatives and place its resolution squarely in the hands of the people.” (See Brief for Petitioner filed April 21, 1995 in Romer v. Evans, No. 94-1039 (Supreme Court), 1995 WL 17008429, at *10) Proponents contended that it was important to ensure that “the deeply divisive issue of homosexuality does not serve to seriously fragment Colorado’s body politic.” (See id ., at *47) Proponents argued that it required some leeway in this socially divisive atmosphere to handle the “sensitive and core political choices” in matters regarding discrimination against homosexuals calmly

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over time. (Id .) The Supreme Court, however, flatly rejected this argument as providing a rational basis and found that the proposed amendment to the Colorado state constitution was unconstitutional. Romer, 517 U.S. at 620.
Here, too, this Court finds that Congress cannot, like an ostrich, merely bury its head in the sand and wait for danger to pass, especially at the risk of permitting continued constitutional injury upon legally married couples. The fact that the issue is socially divisive does nothing to relieve the judiciary of its obligation to examine the constitutionality of the discriminating classifications in the law.
Accordingly, the Court finds that Congressional caution in the area of social divisiveness does not constitute a rational basis.
c. Consistency.
BLAG also contends that Congress could have rationally sought to base eligibility for federal benefits on a traditional definition of marriage in order “to avoid the arbitrariness and inconsistency in such eligibility . . . and not depend[] on the vagaries of state law.” (BLAG Motion to Dismiss at 24.) However, as explained above, in all of the years preceding the passage of DOMA, Congress relied on the various states’ definitions of marriage without incident. All couples married under state law were entitled to federal benefits, even if the particulars of the states’ definitions were variable. The passage of DOMA actually undermined administrative consistency by requiring that the federal government, for the first time, discern which state definitions of marriage are entitled to federal recognition and which are not.

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Accordingly, the Court finds that consistency does not constitute a rational basis.
d. Any other possible basis.
The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further. See Diaz, 656 F.3d at 1015.
CONCLUSION
For the foregoing reasons, the Court HEREBY DENIES BLAG’s motion to dismiss; DENIES as moot BLAG’s motion to strike; GRANTS Ms. Golinski’s motion for summary judgment; and GRANTS the OPM’s motion to dismiss.
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:
Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

60a
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).
This case was presented by an employee of the judicial branch against the executive branch, which ultimately determined it could not legitimately support the law. The law was then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and, where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. . . . it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Nominee).
In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.
Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan. The Clerk is directed to enter judgment in favor of Ms.

61a
Golinski and against defendants the Office of Personnel Management and its director John Berry as set out herein pursuant to Federal Rule of Civil Procedure 58.
IT IS SO ORDERED. Dated: Feb. 22, 2012
/s/ JEFFREY S. WHITE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

62a
APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 10-00257 JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
Filed: Feb. 22, 2012
JUDGMENT
Pursuant to the Court’s Order denying IntervenorDefendant the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”)’s motion to dismiss and motion to strike, granting the motion to dismiss filed by Defendants the United States Office of Personnel Management and John Berry, its director, and granting Plaintiff Karen Golinski’s motion for summary judgment, it is HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff and against Defendants.

63a IT IS SO ORDERED. Dated: Feb. 22, 2012
/s/ JEFFREY S. WHITE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

64a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
No. C 3:10-00257-JSW KAREN GOLINSKI, PLAINTIFF
v. THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, AND JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S.
HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: Feb. 28, 2012
NOTICE OF APPEAL OF DEFENDANTS
TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:
NOTICE IS HEREBY GIVEN that all Defendants hereby appeal to the United States Court of Appeals for the Ninth Circuit from the Judgment dated February

65a 22, 2012 [ECF No. 187] and the underlying Opinion and Order dated February 22, 2012 [ECF No. 186].
Dated this 28th day of February, 2012. Dated: Feb. 28, 2012
Respectfully Submitted, TONY WEST Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ CHRISTOPHER R. HALL CHRISTOPHER R. HALL D.C. Bar No. 468827 Senior Counsel U.S. Department of Justice Civil Division, Federal Programs
Branch P.O. Box 883 Washington, D.C. 20044 (202) 514-4778 (telephone) (202) 616-8470 (fax) Attorneys for Defendants

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APPENDIX D UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case No. 3:10-cv-0257-JSW KAREN GOLINSKI, PLAINTIFF
v. UNITED STATES OFFICE OF PERSONNEL
MANAGEMENT, ET AL., DEFENDANTS and
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: Feb. 24, 2012
INTERVENOR-DEFENDANT’S NOTICE OF APPEAL
Notice is hereby given that Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the “House”), through counsel, respectfully appeals to the United States Court of Appeals for the Ninth Circuit the District Court’s February 22, 2012 Order (ECF No. 186) and final Judgment (ECF No. 187), both insofar as they grant Plaintiff’s motion for summary judgment (ECF No. 142) and deny the House’s motion to dismiss (ECF No. 119).

67a The statutory basis for this appeal is 28 U.S.C. § 1291. The House hereby notifies the Clerk of Court pursuant to Ninth Circuit Rule 3-1 that it is exempt from submitting the filing fee for this appeal. A copy of the Order and a copy of the final Judgment are attached hereto as Exhibits A and B, respectively.
Respectfully submitted, BANCROFT PLLC /s/ H. CHRISTOPHER BARTOLOMUCCI H. CHRISTOPHER BARTOLOMUCCI1 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives2 Feb. 24, 2012
1 Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory H. Christopher Bartolomucci.
2 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this notice of appeal.

68a
APPENDIX E
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12-15388 D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco KAREN GOLINSKI, PLAINTIFF-APPELLEE
v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS
and BIPARTISAN LEGAL ADVISORY GROUP OF THE
U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT-APPELLANT
No. 12-15409 D.C. No. 3:10-cv-00257-JSW Northern District of California, San Francisco KAREN GOLINSKI, PLAINTIFF-APPELLEE
v.

69a UNITED STATES OFFICE OF PERSONNEL MANAGEMENT; JOHN BERRY, DIRECTOR OF THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, IN HIS OFFICIAL CAPACITY,
DEFENDANTS-APPELLANTS and
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, INTERVENOR-DEFENDANT
Filed: May 22, 2012
ORDER
Before: THOMAS, Circuit Judge and En Banc Coordinator.
Pursuant to G.O. 5.2, the petition for initial hearing en banc was circulated to the court. A time was established by which any judge could request a vote on the petition. No judge requested a vote within the time period. Therefore, the petition for initial hearing en banc is denied.
Chief Judge Kozinski and Judge Reinhardt did not participate in the consideration of this matter.
The order filed April 11, 2012, remains in effect. The Clerk shall calendar these consolidated appeals for argument before a three-judge panel during the week of September 10-14, 2012, in San Francisco.

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APPENDIX F
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.