Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 1 of 15 Page ID #:1

1 MICHAEL F. HERTZ

Acting Assistant Attorney General

2 JAMES J. GILLIGAN

Assistant Director

3 W. SCOTT SIMPSON

Senior Trial Counsel

4 Department of Justice

Civil Division, Room 7210

5 Federal Programs Branch

Post Office Box 883

6 Washington, D.C. 20044

Telephone: (202) 514-3495

7

Fax: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

8 ATTORNEYS FOR DEFENDANT

9 UNITED STATES OF AMERICA

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IN THE UNITED STATES DISTRICT COURT

12

FOR THE CENTRAL DISTRICT OF ~IFORNIA

13

SOUTHERN DIVISION

14 ARTHUR SMELT and
15 CHRISTOPHER HAMMER,

16

Plaintiffs,

17

v.

18 UNITED STATES OF AMERICA, STATE OF CALIFORNIA, and
19 DOES 1 through 1,000,

NOTICE OF REMOVAL BY UNITED STATES OF AMERICA
[28 u.s.c. § 1442(a) (1)]

20

Defendants.

21

22
23
24
~ 25
t{~ 26
N/J 27
28

TO: Clerk, Superior Court of California County of Orange Central Justice Center 700 Civic Center Drive West Santa Ana, California 92701
Richard C. Gilbert 950 W. Seventeenth St., Suites D & E Santa Ana, California 92706-3573
PLEASE TAKE NOTICE that the defendant United States of America
hereby removes Case No. 30-2008-00116748, pending in the Superior

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 2 of 15 Page ID #:2

1 Court of California for the County of Orange, to the United States

2 District Court for the Central District of California pursuant to

3 28 U.S.C. § 1442(a) (1). The grounds for removal are as follows:

4

1. On December 29, 2008, plaintiffs filed an action against

5 the United States of America, the State of California, and Does 1

6 through 1,000 in Orange County Superior Court seeking, among other

7 things, an order that the federal Defense of Marriage Act, 1 U.S.C.

8 § 7, 28 U.S.C. § 1738C, violates the United States Constitution.

9 A copy of the Complaint is Attachment 1 hereto.

10

2. This action includes a claim against the United States,

11 such that removal is proper under 28 U.S.C. § 1442(a) (1). The case

12 also involves a question of federal constitutional law, such that

13 original jurisdiction lies in this Court under 28 U.S.C. § 1331

14 (civil actions arising under the Constitution, law, or treaties of

15 the United States). The defenses available to the United States in

16 this action include the federal defense of sovereign immunity.

17

3. This Notice of Removal is timely filed because the United

18 States was never served in the State court action. See Murphy

19 Bros., Inc., v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48

20 (1999) ("An individual or entity named as a defendant is not

21 obliged to engage in litigation unless notified of the action, and

22 brought under a court's authority, by formal process.") (emphasis

23 added). Although a proof of service was filed in State court

24 purporting to reflect service on the "Attorney General Office" at

25 the address of the Office of the United States Attorney in Santa

26 Ana, California, that Office has no record of ever having received

27 the subject Complaint. Counsel for the United States first learned

28

2

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 3 of 15 Page ID #:3

1 of the filing of the subject Complaint on February 28, 2009,

2 through an e-mail from plaintiffs' counsel. Counsel for the United

3 States first received a copy of the subject Complaint on March 3,

4 2009, by contacting the Orange County Superior Court.

5

4. A copy of this Notice will be filed promptly with the

6 Clerk of the Orange County Superior Court. That filing will auto-

7 matically effect the removal of the subject action to this Court,

8 in its entirety, for future proceedings pursuant to 28 U.S.C.

9 § 1446(d). See Ely Valley Mines, Inc. v. Hartford Accident &

10 Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981) ("Since the federal

11 officer is the only one entitled to remove under § 1442, he alone

12 can remove without other defendants joining in the petition, and

13 the entire case is removed to the federal court.").

14

Dated: March 4, 2009

15 Respectfully submitted,

16 MICHAEL F. HERTZ

17

Acting Assistant Attorney General

18

JAMES J. GILLIGAN

Assistant Director

19

20

21 Senior Trial Co nsel

22 Attorneys, Department of Justice

23

Federal Programs Branch

Civil Division, Room 7210

24

Post Office Box 883

Washington, D.C. 20044

25

Telephone: (202) 514-3495

Fax: (202) 616-8470

26

E-mail: scott.simpson@usdoj.gov

27

COUNSEL FOR DEFENDANT

UNITED STATES OF AMERICA

28

3

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 4 of 15 Page ID #:4

1

CERTIFICATE OF SERVICE

2

I hereby certify that on March 4, 2009, I sent the foregoing

document by First Class Mail and electronic mail, to the following:

3

Richard C Gilbert

4

950 West Seventeenth Street, Suites D & E

Santa Ana, CA 92706-3573

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• • Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 5 of 15 Page ID #:5 ' '

('

RICHARD C. GILBERT I SBN 85912 950 West Seventeenth Street, Suites D & E Santa Ana, California 92706~3573

Telephone: 714-667-1038

Fax:

714-667-2388

Attorney for Plaintiffs

7

8

SUPERIOR COURT OF mE STATE OF CALIFORNIA

9

COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

10

30..2008

11 ARTHUR SMELT and CHRISTOPHER HAMMER,
12

13

Plaintiffs,

CASE NO.: QQ1 16 7 4 8
COMW~FORDECLARATORY
AND INJUNCTIVE RELIEF

14

vs.

15 UNITED STATES OF AMERICA, STATE OF CALIFORNJAi and
16 DOES 1 through 1,000, Inc usive,

JUDGE CpREY s. CRAMIN
DEPT. C1 0 ,.--·

17 Defendants.
18

19

INTRODUCTION

2 o

1. Jurisdiction is proper in the California State Superior Court because

21 the State of California is a defendant and the Constitution ofthe State of California is

22 at issue. Original federal question jurisdiction ofthis Court is proper pmsuant to

23 28 U.S.C. §§ 1331 and 1343. Jurisdiction for declaratory and injunctive relief is

24 proper under 28 U.S.C. §§ 2201 and 2202, and Rule 65 Fed. R. Civ. Proc.

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SMELT/HAMMER vs. UNITED STATES, ~T AL

1

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 6 of 15 Page ID #:6
. .

1

STATEMENT OF FACTS

2

2. Plaintiffs are a same-sex couple who married lawfully within the State

3 of California on or subsequent to July 10, 2008. A true and correct copy ofthe

4 License and Certificate ofMarriage is attached hereto and incorporated herein as
s Exhibit "A''.

6

3. The refusal of all states and jurisdictions of the United States of

7 America to recognize the validity ofPlaintiffs' lawful marriage results in the denial 8 of hundreds of state law rights, benefits and responsibilities, and more than a 9 thousand federa) rights, benefits, and responsibilities, that are automatically
1o bestowed upon opposite-gender couples who marry in every state or jurisdiction of

11 the United States ofAmerica that refuses to recognize the validity ofPlaintiffs' 12 lawful marriage.

13

4. Some ofthese automatic rights, benefits and responsibilities are: The

14 right to social security survivor benefits; decision-making authority for funeral

15 arrangements and disposition of the body; the right to bereavement leave in the event

16 of a partner's death; the preswnption that both spouses are the legal parents of a child

17 born during marriage; and, the right to community property, and a share ofseparate

1a property, upon the death of a partner who dies intestate.

19

5. Denial ofthe recognition ofPlaintiffs' lawful marriage has caused

20 Plaintiffs to suffer severe emotional distress, humiliation, mental anguish. a loss of

21 liberty and the pursuit ofhappiness, a denial of equal protection ofthe laws, a denial

22 of due process oflaw, a denial of the exercise of freedom of speech, a denial of 23 freedom of association, a denial of privacy rights, and a denial of the right to travel 24 to establish residency anywhere in the United States with full recognition ofthe

25 legality of Plaintiffs' marriage.

2 6

6. The Federal Defmition of Marriage Act (1 U.S.C. § 7) is gender-

27 specific, defining marriage as between one man and one woman at the exclusion of

28 same-gender couples and is, therefore, unconstitutional.

SMELT/HAMMER vs. UNITED STATES, ET AL

2

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 7 of 15 Page ID #:7 ' '

1

7. Federal law provides that States do not have to recognize or give effect

2 to legal relationships of same-gender couples that are treated as a marriage under the

3 laws of another state (28 U.S.C. § 1738c), and, therefore, restricting same-gender

4 couples' rights to specific jurisdictions, in contrast to opposite-sex couples, is

5 unconstitutional.

6

8. In this lawsuit, Plaintiffs ask for a pennanent injunction compelling the

7 Defendants to take all necessary acts to require the entire nation ofthe United States

8 ofAmerica, all of its territories and jurisdictions, to eliminate any distinction in the

9 law that prejudices the rights ofPlaintiffs. Plaintiffs further seek declaratory

10 judgment establishing any law that restricts Plaintiffs' rights or distinguishes

11 Plaintiffs' rights in any way from any opposite gender married couple to be

12 unconstitutional, Wlder the United States Constitution, including all provisions ofthe

13 Federal Defense of Marriage Act. 1 U.S.C. § 7 and its sub-parts

14

PARTIES

15

9. Plaintiffs are Arthur Bruno Smelt and Christopher David Hammer.

16 Plaintiffs have been in a committed relationship since January 1, 1997. Plaintiffs

17 have exchanged wedding rings and participated in a marriage ceremony in 1997 as a

18 demonstration oftheir love and affection for one another, their desire to be married

19 spouses, and a family unit forever. As a further demonstration ofPlaintiffs' love and

20 affection for one another, Plaintiffs applied for and received a Declaration of

21 Domestic Partnership from the State of California dated January I0, 2000. Plaintiffs

2 2 reside in Orange County, California.

2 3

10. Defendant is the United States of America. Defendant refuses to give

24 legal recognition to Plaintiffs' marriage license solely based on gender. Plaintiffs are

25 a same-sex couple who married lawfully within the State of California on or

2 6 subsequent to July 10, 2008. A true and correct copy of the License and Certificate

27 ofMarriage is attached hereto and incorporated herein as Exhibit "A".

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SMELT/RAMMER vs. UNITED STATES, ET AL

3

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 8 of 15 Page ID #:8 ' '

1

11. Defendants are the United States ofAmerica and OOES 1 through

2 1,000.

3

12. Plaintiffs are ignorant of the true names and capacities, whether

4 individual, corporate, associate or othetwise ofDefendants sued herein as DOES 1

5 through 1,000, inclusive, and therefore sues said Defendants by such fictitious names

6 and will amend this Complaint to show their true names and capacities when

7 ascertained.

8

13. Plaintiffs are informed and believe and thereon allege that at all times

9 herein mentioned, Defendants, and each of them, were agents, servants, and

1 o employees of each ofthe remaining Co-defendants and were acting within the course

11 and scope of said agency and employment and with the consent and pennission of

12 each ofthe remaining Co-defendants.

13

14. Plaintiffs are informed and believe and thereon allege that each of said

14 Defendants is responsible in some manner for the events alleged herein and

15 negligently and proximately caused injuries and damage to Plaintiff as hereinafter set

16 forth.

17

15. The Federal Definition of Marriage Act (1 U.S.C. § 7) defmes the

18 words "marriage" to mean "only a legal union between one man and one woman as

19 husband and wife~" and "spouse" to refer to "only a person ofthe opposite sex who is

20 a husband or a wife."

21

16. Federal law provides that "no state ... ofthe United States ... may be

2 2 required to give effect to any public act, record, or judicial proceeding of any other

23 state ... respecting a relationship between persons ofthe same sex that is treated as a

2 4 marriage under the laws of such other state ... arising from such relationship"

25 (28 U.S.C. § 1738c).

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SMELT/HAMMER vs. ONITEP STATES, ET AL

4

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 9 of 15 Page ID #:9
' '

1

CLAIMS FOR RELIEF

2

17. The Federal Defense ofMarriage Act, Title 1 U.S.C. §7 and all its sub-

3 parts, violate the individual constitutional rights as prescribed by the United States

4 Constitution, to wit: Violation ofthe Equal Protection and Due Process Clauses and

5 violation ofthe Right to Life, Liberty and the Pursuit ofHappiness. The prohibition

6 further violates the right to be free from an undue invasion ofthe Right ofPrivacy;

7 and violates the Ninth Amendment Right of Reservation of all Rights not

a Enumerated to the People, and the Right to Travel, and The Right ofFree Speech,

9

18. The Federal Defense ofMarriage Act, Title 1 U.S.C. §7 and all its sub-

1 o parts, violate the liberty interests protected by the Due Process Clause ofthe

11 Fourteenth Amendment (42 U.S.C. § 1983).

12

19. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-

13 parts, violates and discriminates on the basis ofgender in violation ofthe Equal

14 Protection Clause ofthe Fourteenth Amendment (42 U.S.C. § 1983).

15

20. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-

16 parts, violates and discriminates on the basis of sexual orientation in violation ofthe

17 Equal Protection Clause ofthe Fourteenth Amendment (42 U.S.C. § 1983).

18

21. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-

19 parts, violates the privacy interests protected by the Right to Privacy (Griswold y.

20 Connecticut, 381 U.S. 479 (1965)).

21

22. The Federal Defense ofMarriage Act, Title 1 U.S.C. §7 and all its sub-

22 parts, additionally violates the Full Faith and Credit Clause ofArticle Five ofthe

23 United States Constitution (28 U.S.C. § 1738).

24

23. The Federal Definition ofMarriage Act (28 U.S.C. 1738c), if

25 concluded to exclude same-gender couples, violates the individual constitutional

2 6 rights as prescribed by the United States Constitution.

2 7

24. The Acts violate the liberty interests protected by the Due Process

28 Clause ofthe Fourteenth Amendment (42 U.S.C. § 1983).

SMELT/HAMMER vs. UNIT&O STATES, ET AL

5

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 10 of 15 Page ID #:10
' '

1

25. The Acts discriminate on the basis of gender in violation ofthe Equal

2 Protection Clause ofthe Fourteenth Amendment (42 U.S.C. § 1983).

3

26. The Acts discriminates on the basis of sexual orientation in violation of

4 Equal Protection Clause of the Fourteenth Amendment (42 U.S.C. § 1983).

5

27. The Acts violate the privacy interests protected by the Right to Privacy

6 (Griswold v. Connecticut, 381 U.S. 479 (1965)).

7

28. Federal law providing that "no state ... ofthe United States ... may be

8 required to give effect to any public act, record, or judicial proceeding of any other

9 state ... respecting a relationship between persons of the same sex that is treated as a
1o marriage under the laws of such other state ... arising from such relationship" (28 11 U.S.C. § 1738c) is unconstitutional violating Due Process Clause (42 U.S.C. § 1983), 12 the Equal Protection Clause (42 U.S.C. § 1983), and the Right to Privacy (Griswold

13 y. Connecticut, 381 U.S. 479 (1965)) ofthe same-gender couple, and the Full Faith 14 and Credit Clause ofthe United States Constitution (28 U.S.C. § 1738).

15

29. Defendant, State of California, caused Proposition 8 to be published on

16 the ballot for the November 4, 2008 election. Proposition 8 amends the California

17 Constitution to defmed marriage as between a man and a woman and to prohibit

1B same gender marriage. As amended, the State of California Constitution violates the

19 United States Constitution as follows: Violation ofthe Equal Protection and Due
2 o Process Clauses and violation ofthe Right to Life, Liberty and the Pursuit of

21 Happiness. The prohibition further violates the right to be free from an undue

22 invasion ofthe Right of Privacy; and violates the Ninth Amendment Right of 23 Reservation of all Rights not Enumerated to the People, and the Right to Travel, and

24 The Right of Free Speech.

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SMELT/HAMMER vs. UNITED STATES, ET AL
6

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 11 of 15 Page ID #:11 ,.J

1

uFREEDOM MEANS FREEDOM FOR EVERYONE"

2

Vice President Cheney

3

WHEREFORE, Plaintiffs pray, and respectfully request that the Court enter

4 judgment:

5

1. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7

6 and all its sub-parts, and the Federal Definition ofMarriage Act (28 U.S.C. 1738c),

7 and its sub-parts, violate the Due Process, Equal Protection and Right to Privacy

8 Clauses of the United States Constitution;

9

2. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7

10 and all its sub-parts, and the Federal Definition ofMarriage Act (28 U.S.C. 1738c),

11 and its sub-parts, violates the Due Process, Equal Protection and Right to Privacy

12 Clauses ofthe United States Constitution;

13

3. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7

14 and all its sub-parts, and the Federal Definition ofMarriage Act (28 U.S.C. 1738c),

15 and its sub-parts, violate the Due Process, Equal Protection, Right to Privacy and

16 Full Faith and Credit Clauses ofthe United States Constitution;

17

4. Declaring that 28 U.S.C. § 1738c violates the Full Faith and Credit of

18 the United States Constitution;

19

5. Declaring that the State of California Constitution as amended by

2 0 Proposition 8 defining marriage as between a man and a woman the3reby banning

21 same gender marriage violates the Constitution ofthe United States ofAmerica to

22 wit: Violation of the Equal Protection and Due Process Clauses and violation of the

23 Right to Life, Liberty and the Pursuit ofHappiness. The prohibition further violates

24 the right to be free from an undue invasion ofthe Right ofPrivacy; and violates the

2s Ninth Amendment Right ofReservation ofall Rights not Enumerated to the People,

2 6 and the Right to Travel, and The Right of Free Speech.

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SMELT/HAMMER vs. UNITED STATES, ET AL
7

COMPLAINT

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 12 of 15 Page ID #:12

•

J

1

6. Issue an injunctive order mandating and compelling the State of

2 California to eliminate from its Constitution the amendment which bans same gender

3 marriage and defmes marriage as between a man and woman commonly known as

4 Proposition 8.

5

7. Issue an injunctive order mandating the use of gender-neutral terms in

6 all legislation affecting marriage.

7

8. Costs, including but not limited to attorneys' fees; and

8

9. Granting such other and further relief as the Court deems just and

9 proper.

10
11 DATED: December 26, 2008
12

R~fi~o~~t~scbi. #d~
State Bar No. 85912

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SMELT/HAMMER va. UNITED STATES, ET AL

8

CUM PLAINT

DOJ CIVIL DIVISION

202 616 8470 P.02

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 13 of 15 Page ID #:13

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

I (a) PLAINTIFFS (Check box if you are representing yourself D)

DEFENDANTS

Anhur Smelt and Christopher Hammer

United States of America, State of California, Does I through 1,000
I

(b) Attorneys (Firm Name, Address and Telephone Number. If you are representing yourself, provide same.)

Richard C. Gilbert 950 West Seventeenth Street, Suites D & E Santa Ana, CA 92706-3573

714-667-1038

Attorneys (I~~ own)
W. Scott Simpson 202-514-3495 U.S. Department of Justice, Room 721 0 Post Office Box 883 Washington, DC 20044

M~. Beckington 916-897-1096
1300 I Street, Suite 125 Post Office Box 944255 Sacramento, CA 94244-2550

II. BASIS OF JURISDICTION (Place an X in one box only.)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES- For Diversity Cases Only (Place an X in one box for plaintiff and one for defendant.)

0 I U.S. Government Plaintiff

0 3 Federal Question (U.S. Government Not a Party)

Citizen of This State

PTF DEF 01 01 Incorporated or Principal Place
of Business in this State

PTF DEF 04 04

r£2 U.S. Government Defendant 0 4 Diversity (Indicate Citizenship Citizen of Another State of Panies in Item Ill)

02 02 Incorporated and Principal Place 05 05 of Business in Another State

Citizen or Subject of a Foreign Country 0 3 0 3 Foreign Nation

06 06

IV. ORIGIN (Place an X in one box only.)

0 I Original

~2 Removed from 0 3 Remanded from

Proceeding

State Coun

Appellate Coun

0 4 Reinstated or Reopened

0 5 Transferred from another district (specify):

iYf' V. REQUESTED IN COMPLAINT: JURY DEMAND: 0 Yes No (Check 'Yes' only if demanded in complaint.)

0 6 Multi- 0 7 Appeal to District

District

Judge from

Litigation

Magistrate Judge

CLASS ACTION under F.R.C.P. 23: 0 Yes li'No

0 MONEY DEMANDED IN COMPLAINT: $

VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.) Constitutionality of federal Defense of Marriage Act, I USC 7, 28 USC 1738c; constitutionality of California Constitution Article I, Section 7.5
VII. NATURE OF SUIT (Place an X in one box only.)

(yrrJiERBTAMES 7;: ;, '',;,\c;• ~l)NT~ct'''' :.'·;t·;:·

0400 State Reapportionment 0110 Insurance

0410 Antitrust

120 Marine

0430 Banks and Banking

130 Miller Act

0450 Commerce/ICC

140 Negotiable Instrument

Rates/etc.

150 Recovery of

0460 Deponation

Overpayment &

0470 Racketeer Influenced

Enforcement of

and Corrupt

Judgment

Organizations

151 Medicare Act

0480 Consumer Credit

152 Recovery of Defaulted

0490 Cable/Sat TV

Student Loan (Excl.

0 810 Selective Service

Veterans)

0 850 Securities/Commodities/ 153 Recovery of

Exchange

Overpayment of

0875 Customer Challenge 12
usc 3410

Veteran's Benefits 160 Stockholders' Suits

0 890 Other Statutory Actions 190 Other Contract

0 891 Agricultural Act

195 Contract Product

0 892 Economic Stabilization

Liability

Ac.t 0893 Environmental Matters

196 Franchise
,JffiA,liiJ>RQPERrV-'

0894 Energy Allocation Act 210 Land Condemnation

0 895 Freedom of Info. Act

220 Foreclosure

0900 Appeal of Fee Determi- 230 Rent Lease & Ejectment

nation Under Equal

240 Torts to Land

Access to Justice

245 Tort Product Liability

!i1'950 Constitutionality of 0290 All Other Real Property

State Statutes

Airplane Airplane Product Liability Assault. Libel & Slander Fed. Employers' Liability Marine Marine Product Liability Motor Vehicle Motor Vehicle Product Liability Other Personal Injury Personal InjuryMed Malpractice Personal InjuryProduct Liability Asbestos Personal Injury Product Liability . •IGJM,\tf,i'ON. 462 Naturalization Application Habeas CorpusAlien Detainee Other Immigration Actions

-~;~~~!;~·?.~-~~~&::~,~~~
PERSONAL PROPERTY 370 Other Fraud 371 380
American with Disabilities Employment American with Disabilities Other Other Civil Rights

Vacate Sentence Habeas Corpus General Death Penalty Mandamus/ Other Civil Rights Prison

~!~·~~Jft-~~~~::,'·~i}i~:·~:;ttJ
710 Fair Labor Standards Act Labor/Mgmt. Relations Labor/Mgmt. Reponing & Disclosure Act Railway Labor Act Other Labor

Agriculture 620 Other Food &
Drug Drug Related Seizure of Property 21 USC 881 Liquor Laws
R.R. & Truck Airline Regs Occupational Safety /Health Other

Trademark
HIA (I 395ft) Black Lung (923) DIWC/DJWW (405(g)) SSID Title XVI
Taxes (U.S. Plaintiff or Defendant) IRS-Third Party 26 USC7609

SACV09 ·286 AcC(1\ILGx)

FOR OFF'ICE USE ONLY: Case N u m b e r : - - - - - - - - - - - - - - - - - - - ' - - - - - - - - - - AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.

CV-71 (05/08)

CIVIL COVER SHEET

Page I of2

DUJ ClVlL DIVISION

202 616 8470 P.03

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 14 of 15 Page ID #:14

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET

ill' VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? No 0 Yes
If yes, list 'ase number(s): - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
r£ VIII(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? 0 No Yes
If yes, list case number(s): Case No. SACV04-1042 DOC {MLGx)

Civil ctues are deemed related if a previously tiled case and the present case:
rZ (Check all boxes that apply) A. Arise from the same or closely related transactions, happenings, or events; or
niB. Call for determination of the same or substantially related or similar questions of law and fact; or
0 C. For other reasons would entail substantial duplication oflabor if heard by different judges; or
0 D. Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present.

IX. VENUE: (When completing the following information, use an additional sheet if necessary.)

(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides. 0 Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).

County in this District: • Arthur Smelt: County of Orange (alleged) Christopher Hammer: County of Orange (alleged)

California County outside of this District; State, if other than California; or Foreign Country

(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
fit Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).

County in this District:•

California County outside of this District; State, if other than California; or Foreign Country

(c) List the County in this District; California County outside of this District; State ifotherthan California; or Foreign Country, in which EACH claim arose. Note: In land condemnation cases, use the location of the tract of land Involved

County in this District: •

California County outside of this District; State, if other than California; or Foreign Country

Not alleged in the Complaint.

* Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties
Note: In land condemnation cases use the location ofth tract fland involved

Notice to CounseVParties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3- l is not filed but is used by the Clerk of the Court forthe purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

861

HIA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.

Also, include claims by hospitals, skilled nursing facilities, etc., for certific(ltion as providers of services under the

program. (42 U.S.C. 1935FF(b))

'

862

BL

All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969.

(30 u.s.c. 923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as

amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))

863

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security

Act, as amended. (42 U.S.C. 405(g))

864

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security

Act, as amended.

865

RSl

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42

u.s.c. (g))

CV-71 (05/08)

CIVIL COVER SHEET

Page 2 of2

TOTAL P.03

Case 8:09-cv-00286-DOC-MLG Document 1 Filed 03/09/09 Page 15 of 15 Page ID #:15
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge Andrew Guilford and the assigned discovery Magistrate Judge is Marc Goldman. The case number on all documents filed with the Court should read as follows:
SACV09- 286 AG (MLGx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

U Western Division
312 N. Spring St., Rm. G-8 Los Angeles, CA 90012

[X] Southern Division

U Eastern Division

411 West Fourth St., Rm. 1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

 
 Case 8:09-cv-00286-DOC-MLG Document 36 Filed 07/15/09 Page 1 of 4 Page ID #:210

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. SACV 09-0286 DOC (MLGx)

Date: July 15, 2009

Title: SMELT ET AL. V. UNITED STATES OF AMERICA, ET AL.

DOCKET ENTRY
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]
Date:____________ Deputy Clerk: ___________________________________

PRESENT:

THE HONORABLE DAVID O. CARTER, JUDGE

Kristee Hopkins Courtroom Clerk

Not Present Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT

NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING MOTION TO DISMISS
Before the Court is Defendant State of California’s (“California”) Motion to Dismiss (the Motion”). After reviewing the moving papers, hearing oral argument, and for the reasons set forth below, the Court hereby GRANTS the Motion.
I. BACKGROUND
On December 29, 2008, Plaintiffs Arthur Bruno Smelt and Christopher David Hammer (“Plaintiffs”) filed the instant case in California Superior Court. The case was removed to this Court on March 9, 2009. The Plaintiffs in this case are a same-sex couple who received a Declaration of Domestic Partnership from the State of California on January 10, 2000 and were subsequently married under the laws of California, “on or subsequent to July 10, 2008" – i.e., before Proposition 8 was passed in California’s November 4, 2008 election. Plaintiffs allege that “the refusal of all states and jurisdictions” to recognize the validity of their marriage results in the denial to them of numerous rights, benefits and responsibilities bestowed on all other married couples, so long as they are opposite-sex couples. Plaintiffs state that the rights, benefits and responsibilities that they are denied include the

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Case 8:09-cv-00286-DOC-MLG Document 36 Filed 07/15/09 Page 2 of 4 Page ID #:211
right to social security survivor benefits, decision-making authority for funeral arrangements and the disposition of a spouse’s body, the right to bereavement leave in the even to of a spouse’s death, the presumption that both spouses are the parent of a child born during marriage, and the right to a certain division of their spouse’s separate property and the couple’s marital property upon the death of a spouse who dies intestate. Plaintiffs further argue that the denial of such rights, benefits and responsibilities has caused them to suffer severe emotional distress, mental anguish, humiliation, loss of liberty and the pursuit of happiness, denial of equal protection of laws, denial of freedom of association, denial of privacy rights, and denial of the right to travel to establish residency anywhere in the United States with the full recognition of the legality of Plaintiffs’ marriage.
Plaintiffs target their action at the federal Defense of Marriage Act, 1 U.S.C. §7; 28 U.S.C. §1738C (the “DOMA”), as well as “Proposition 8". Proposition 8 was a provision on the California state ballot in the November 4, 2008 election that amended the California Constitution to define marriage as between a man and a woman only. Plaintiffs assert that this amendment violates several portions of the U.S. Constitution.
Plaintiffs seek broad relief. Plaintiffs seek a permanent injunction compelling the United States and the State of California (“Defendants”) to “take all necessary acts to require the entire nation of the United States of America, all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs.” Additionally, Plaintiffs seek a declaratory judgment “establishing that any law that restricts Plaintiffs’ rights of distinguishes Plaintiffs’ rights in any way from any opposite gender couple to be unconstitutional, under the United States Constitution, including all provisions of the [DOMA].”
In the instant Motion, California moves to dismiss the claims against it, which pertain only to Proposition 8, arguing that Plaintiffs lack standing to pursue said claims.
II. LEGAL STANDARD
A. Standing
Each element of standing is "an indispensable part of the plaintiff's case," and accordingly "must be supported in the same way as any other matter on which the plaintiff bears the burden, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130 (1992). To establish standing, a plaintiff must demonstrate: (1) an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) “there must be a causal connection between the injury and the conduct complained of – the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;” and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 2136 (internal

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Case 8:09-cv-00286-DOC-MLG Document 36 Filed 07/15/09 Page 3 of 4 Page ID #:212
citations omitted). See also Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002) (internal quotation marks and citations omitted)("In the context of declaratory and injunctive relief, [a plaintiff] must demonstrate that [he or she] has suffered or is threatened with a concrete and particularized legal harm . . . coupled with a sufficient likelihood that [he or she] will again be wronged in a similar way.").
III. DISCUSSION
This is the second time that Plaintiffs have come before this Court, presenting substantially similar arguments each time. In Smelt, et al. v. County of Orange, California, et al., SACV04-1042 DOC (MLGx), Plaintiffs filed suit before Judge Gary L. Taylor, arguing that they had applied for, and been denied, a marriage license by the County Clerk of Orange County, California, in violation of the U.S. Constitution. More specifically, Plaintiffs argued that Section 2 of the DOMA violates the United States Constitution’s Due Process, equal protection rights under the Fifth Amendment, the Right to Privacy and the Full Faith and Credit Clause. Additionally, they argued that Section 3 of the DOMA violates the “liberty interests protected by the Due Process Clause”; discriminates “on the basis of gender” and “sexual orientation” in violation of equal protection; and violates “the privacy interest protected by the Right to Privacy.” Plaintiffs also argued that the California Family Code violated the U.S. Constitution. Plaintiffs sought a declaratory judgment that the relevant sections of the California Family Code and the DOMA were unconstitutional as well as injunctive relief “[m]andating the use of gender-neutral terms and issuing a marriage license to [them].”
Judge Taylor (1) abstained from deciding the constitutionality of the challenged sections of the California Family Code until the resolution of cases then-pending before the California Court of appeal concerning whether the portions of the California Family Code that limit marriage to oppositesex couples violated the California Constitution, (2) held that Plaintiffs had no standing to challenge Section 2 of the DOMA, and (3) held that Plaintiffs had no standing to challenge Section 3 of the DOMA but that that section did not violate the U.S. Constitution. In Smelt v. County of Orange, 374 F.Supp.2d 861, 685 (C.D. Cal. 2005), the Ninth Circuit reviewed Judge Taylor’s ruling in SACV041042 DOC (MLGx), upholding his decision to abstain as to Plaintiffs’ challenge to the California Family Code, upholding his decision that Plaintiffs did not have standing to challenge either Section 3 or Section 2 of the DOMA as Plaintiffs were not married (and as they presented abstract and generalized grievances), and vacating his decision regarding the merits of the DOMA Section 3 claim as, given the “abstract facial attack made,” no one could “know whether in the context of some particular statute as applied to some particular person in some particular situation Congress’s use of the word ‘marriage’ [would] amount to an unconstitutional classification.”
On remand, the case was transferred to this Court. On August 29, 2008, this Court dismissed the case, as directed by the Ninth Circuit. The Plaintiffs filed the instant lawsuit on November 3, 2008, this time including the fact that, after the filing of the initial lawsuit, they had been married under California law.

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Once again, the instant Motion turns not on the merits of the dispute, but on standing. California correctly asserts that Plaintiffs no longer have standing to pursue their claims against the State of California, as they relate to the enforcement of Proposition 8. Proposition 8, as codified in Section 7.5 to Article I of the California Constitution, was recently held by the California Supreme Court to present no bar to the recognition of Plaintiffs’ marriage within California, as said marriage was performed before Proposition 8 was passed. Strauss v. Horton, 46 Cal.4th 364 (Cal. 2009). As Plaintiffs’ marriage is valid within California, they cannot present an injury with respect to the recognition of their marriage by the State of California under Lujan and, therefore, they do not have standing to pursue their claims against the State of California. 504 U.S. 555.
IV. OUTCOME
For the foregoing reasons, the Motion is GRANTED and the State of California is HEREBY DISMISSED WITHOUT PREJUDICE.
The Clerk shall serve this minute order on all parties to the action.

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 Arthur SMELT et al, v. UNITED STATES OF AMERICA et al., 2009 WL 1471476 (2009)

Dept.C10

2009 WL 1471476 (C.D.Cal.) (Trial Pleading) United States District Court, C.D. California.
Arthur SMELT et al, v.
UNITED STATES OF AMERICA et al. No. 809CV00286. March 9, 2009.
Complaint for Declaratory and Injunctive Relief

Note: This document was obtained from the above titled case. (PDF information below.)
Court: Superior Court of the State of California County of Orange, Central Justice Center
Title: Arthur Smelt and Christopher Hammer, Plaintiffs, Vs. United States of America, State of California, and Does 1 through 1,000, Inclusive, Defendants.
Docket Number: Case No.: 00116748
Date: 03/09/2009
Richard C. Gilbert / SBN 85912, 950 West Seventeenth Street, Suites D & E, Santa Ana, California 92706-3573, Telephone: 714-667-1038, Fax: 714-667-2388, Attorney for Plaintiffs.
Judge Corey S. Cramin.
INTRODUCTION
1. Jurisdiction is proper in the California State Superior Court because the State of California is a defendant and the Constitution of the State of California is at issue. Original federal question jurisdiction of this Court is proper pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction for declaratory and injunctive relief is proper under 28 U.S.C. §§ 2201 and 2202, and Rule 65 Fed. R. Civ. Proc.

STATEMENT OF FACTS
2. Plaintiffs are a same-sex couple who married lawfully within the State of California on or subsequent to July 10, 2008. A true and correct copy of the License and Certificate of Marriage is attached hereto and incorporated herein as Exhibit “A”.
3. The refusal of all states and jurisdictions of the United States of America to recognize the validity of Plaintiffs’ lawful marriage results in the denial of hundreds of state law rights, benefits and responsibilities, and more than a thousand federal rights, benefits, and responsibilities, that are automatically bestowed upon opposite-gender couples who marry in every state or jurisdiction of the United States of America that refuses to recognize the validity of Plaintiffs’ lawful marriage.
4. Some of these automatic rights, benefits and responsibilities are: The right to social security survivor benefits;
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Arthur SMELT et al, v. UNITED STATES OF AMERICA et al., 2009 WL 1471476 (2009)
decision-making authority for funeral arrangements and disposition of the body; the right to bereavement leave in the event of a partner’s death; the presumption that both spouses are the legal parents of a child born during marriage; and, the right to community property, and a share of separate property, upon the death of a partner who dies intestate.
5. Denial of the recognition of Plaintiffs’ lawful marriage has caused Plaintiffs to suffer severe emotional distress, humiliation, mental anguish. a loss of liberty and the pursuit of happiness, a denial of equal protection of the laws, a denial of due process of law, a denial of the exercise of freedom of speech, a denial of freedom of association, a denial of privacy rights, and a denial of the right to travel to establish residency anywhere in the United States with full recognition of the legality of Plaintiffs’ marriage.
6. The Federal Definition of Marriage Act (1 U.S.C. § 7) is gender-specific, defining marriage as between one man and one woman at the exclusion of same-gender couples and is, therefore, unconstitutional.
7. Federal law provides that States do not have to recognize or give effect to legal relationships of same-gender couples that are treated as a marriage under the laws of another state (28 U.S.C. § 1738c), and, therefore, restricting same-gender couples’ rights to specific jurisdictions, in contrast to opposite-sex couples, is unconstitutional.
8. In this lawsuit, Plaintiffs ask for a permanent injunction compelling the Defendants to take all necessary acts to require the entire nation of the United States of America, all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs. Plaintiffs further seek declaratory judgment establishing any law that restricts Plaintiffs’ rights or distinguishes Plaintiffs’ rights in any way from any opposite gender married couple to be unconstitutional, under the United States Constitution, including all provisions of the Federal Defense of Marriage Act. 1 U.S.C. § 7 and its sub-parts
PARTIES
9. Plaintiffs are Arthur Bruno Smelt and Christopher David Hammer. Plaintiffs have been in a committed relationship since January 1,1997. Plaintiffs have exchanged wedding rings and participated in a marriage ceremony in 1997 as a demonstration of their love and affection for one another, their desire to be married spouses, and a family unit forever. As a further demonstration of Plaintiffs’ love and affection for one another, Plaintiffs applied for and received a Declaration of Domestic Partnership from the State of California dated January 10,2000. Plaintiffs reside in Orange County, California.
10. Defendant is the United States of America. Defendant refuses to give legal recognition to Plaintiffs’ marriage license solely based on gender. Plaintiffs are a same-sex couple who married lawfully within the State of California on or subsequent to July 10,2008. A true and correct copy of the License and Certificate of Marriage is attached hereto and incorporated herein as Exhibit “A”.
11. Defendants are the United States of America and DOES 1 through 1,000.
12. Plaintiffs are ignorant of the true names and capacities, whether individual, corporate, associate or otherwise of Defendants sued herein as DOES 1 through 1,000, inclusive, and therefore sues said Defendants by such fictitious names and will amend this Complaint to show their true names and capacities when ascertained.
13. Plaintiffs are informed and believe and thereon allege that at all times herein mentioned, Defendants, and each of them, were agents, servants, and employees of each of the remaining Co-defendants and were acting within the course and scope of said agency and employment and with the consent and permission of each of the remaining Co-defendants.
14. Plaintiffs are informed and believe and thereon allege that each of said Defendants is responsible in some manner for the events alleged herein and negligently and proximately caused injuries and damage to Plaintiff as hereinafter set forth.
15. The Federal Definition of Marriage Act (1 U.S.C. § 7) defines the words “marriage” to mean “only a legal union between one man and one woman as husband and wife,” and “spouse” to refer to “only a person of the opposite sex who is a husband or a wife.”
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Arthur SMELT et al, v. UNITED STATES OF AMERICA et al., 2009 WL 1471476 (2009)
16. Federal law provides that “no state... of the United States... may be required to give effect to any public act, record, or judicial proceeding of any other state... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state... arising from such relationship” (28 U.S.C. § 1738c).
CLAIMS FOR RELIEF
17. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, violate the individual constitutional rights as prescribed by the United States Constitution, to wit: Violation of the Equal Protection and Due Process Clauses and violation of the Right to Life, Liberty and the Pursuit of Happiness. The prohibition further violates the right to be free from an undue invasion of the Right of Privacy; and violates the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech,
18. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, violate the liberty interests protected by the Due Process Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
19. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, violates and discriminates on the basis of gender in violation of the Equal Protection Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
20. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, violates and discriminates on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
21. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, violates the privacy interests protected by the Right to Privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)).
22. The Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, additionally violates the Full Faith and Credit Clause of Article Five of the United States Constitution (28 U.S.C. § 1738).
23. The Federal Definition of Marriage Act (28 U.S.C. 1738c), if concluded to exclude same-gender couples, violates the individual constitutional rights as prescribed by the United States Constitution.
24. The Acts violate the liberty interests protected by the Due Process Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
25. The Acts discriminate on the basis of gender in violation of the Equal Protection Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
26. The Acts discriminates on the basis of sexual orientation in violation of Equal Protection Clause of the Fourteenth Amendment (42 U.S.C. § 1983).
27. The Acts violate the privacy interests protected by the Right to Privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)).
28. Federal law providing that “no state... of the United States... may be required to give effect to any public act, record, or judicial proceeding of any other state... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state...arising from such relationship” (28 U.S.C. § 1738c) is unconstitutional violating Due Process Clause (42 U.S.C. § 1983), the Equal Protection Clause (42 U.S.C. § 1983), and the Right to Privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)) of the same-gender couple, and the Full Faith and Credit Clause of the United States Constitution (28 U.S.C. § 1738).
29. Defendant, State of California, caused Proposition 8 to be published on the ballot for the November 4,2008 election. Proposition 8 amends the California Constitution to defined marriage as between a man and a woman and to prohibit same gender marriage. As amended, the State of California Constitution violates the United States Constitution as follows: Violation of the Equal Protection and Due Process Clauses and violation of the Right to Life, Liberty and the Pursuit of Happiness. The prohibition further violates the right to be free from an undue invasion of the Right of Privacy; and violates
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Arthur SMELT et al, v. UNITED STATES OF AMERICA et al., 2009 WL 1471476 (2009)
the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech.
“FREEDOM MEANS FREEDOM FOR EVERYONE”
Vice President Cheney WHEREFORE, Plaintiffs pray, and respectfully request that the Court enter judgment: 1. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, and the Federal Definition of Marriage Act (28 U.S.C. 1738c), and its sub-parts, violate the Due Process, Equal Protection and Right to Privacy Clauses of the United States Constitution; 2. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, and the Federal Definition of Marriage Act (28 U.S.C. 1738c), and its sub-parts, violates the Due Process, Equal Protection and Right to Privacy Clauses of the United States Constitution; 3. Declaring that the Federal Defense of Marriage Act, Title 1 U.S.C. §7 and all its sub-parts, and the Federal Definition of Marriage Act (28 U.S.C. 1738c), and its sub-parts, violate the Due Process, Equal Protection, Right to Privacy and Full Faith and Credit Clauses of the United States Constitution; 4. Declaring that 28 U.S.C. § 1738c violates the Full Faith and Credit of the United States Constitution; 5. Declaring that the State of California Constitution as amended by Proposition 8 defining marriage as between a man and a woman the3reby banning same gender marriage violates the Constitution of the United States of America to wit: Violation of the Equal Protection and Due Process Clauses and violation of the Right to Life, Liberty and the Pursuit of Happiness. The prohibition further violates the right to be free from an undue invasion of the Right of Privacy; and violates the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech. 6. Issue an injunctive order mandating and compelling the State of California to eliminate from its Constitution the amendment which bans same gender marriage and defines marriage as between a man and woman commonly known as Proposition 8. 7. Issue an injunctive order mandating the use of gender-neutral terms in all legislation affecting marriage. 8. Costs, including but not limited to attorneys’ fees; and 9. Granting such other and further relief as the Court deems just and proper. DATED: December 26, 2008
4

 
 Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683907...
2009 WL 1683907 (C.D.Cal.) (Trial Pleading) United States District Court, C.D. California,
Southern Division.
Arthur SMELT et al., Plaintiffs, v.
UNITED STATES OF AMERICA et al., Defendants, and
Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson; and ProtectMarriage.com - Yes on 8, a Project of California Renewal,
Intervenors.
No. SACV-09-286 DOC (MLGx). April 10, 2009.
Answer of Proposition 8 Official Proponents and Campaign Committee
Brian W. Raum (NY Bar No. 2856102)*, James A. Campbell (OH Bar No. 0081501)*, Alliance Defense Fund, 15100 North 90th Street, Scottsdale, Arizona 85260, Phone: 480-444-0020, Fax: 480-444-0028, Email: braum @telladf.org, Email: jcampbell@telladf.org.
Andrew P. Pugno (CA Bar No. 206587), Law Offices of Andrew P. Pugno, 101 Parkshore Drive, Suite 100, Folsom, California 95630, Phone: 916-608-3065, Fax: 916-608-3066, Email: andrew@pugnolaw.com.
Sam Kim (CA Bar No. 212964), Michael Parker (CA Bar No. 138253), Sam Kim and Associates, PC, 5661 Beach Blvd., Buena Park, CA 90621, Phone: 714-736-5501, Fax: 714-736-9901, Attorneys for Proposed Intervenors.
Footnotes
The Honorable David O. Carter.
Intervenors Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson (collectively referred to as “Proponents”), and Proposition 8 Campaign Committee ProtectMarriage.com - Yes on 8, a Project of California Renewal (the “Committee”), by and through counsel, answer Plaintiffs’ Complaint for Declaratory and Injunctive Relief as follows:
1. Paragraph 1 of the Complaint contains Plaintiffs’ allegations of jurisdiction, which do not require a response. To the extent a response is required, Intervenors admit that this Court has federal-question jurisdiction pursuant to 28 U.S.C. § 1331. Intervenors lack sufficient information to respond to the remaining allegations concerning jurisdiction; thus those allegations are deemed denied.
2. Intervenors lack sufficient information to respond to the allegations in Paragraph 2 of the Complaint; thus they are deemed denied.
3. Intervenors deny the allegations in Paragraph 3 of the Complaint, except to admit that state and federal law imposes many responsibilities and bestows many benefits on married couples.
4. Intervenors admit that state and federal law imposes many responsibilities and bestows many benefits on married couples. But Intervenors lack sufficient information regarding each marital responsibility or benefit identified in Paragraph 4 of the Complaint; thus those particular allegations are deemed denied.
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683907...
5. Intervenors lack sufficient information to respond to the allegations about emotional distress, humiliation, and mental anguish in Paragraph 5 of the Complaint; thus they are deemed denied. Intervenors deny the remaining allegations in Paragraph 5 of the Complaint.
6. Intervenors deny the allegations in Paragraph 6 of the Complaint, except to admit that the Federal Defense of Marriage Act, 1 U.S.C. § 7, defines the word “marriage” as “a legal union between one man and one woman as husband and wife”
7. Intervenors deny the allegations in Paragraph 7 of the Complaint, except to admit that the Federal Defense of Marriage Act, 28 U.S.C. § 1738c, states that “[n]o State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State ... or a right or claim arising from such relationship.”
8. Intervenors acknowledge that Plaintiffs request a very broad injunction in Paragraph 8 of the Complaint, but Intervenors deny that Plaintiffs are entitled to such relief and further deny that this Court has jurisdiction to grant such relief. Intervenors acknowledge that Plaintiffs request a declaratory judgment in Paragraph 8 of the Complaint, but Intervenors deny that Plaintiffs are entitled to such relief and further deny that this Court has jurisdiction to grant such relief.
9. Intervenors lack sufficient information to respond to the allegations in Paragraph 9 of the Complaint; thus they are deemed denied.
10. Intervenors lack sufficient information to respond to the allegations in Paragraph 10 of the Complaint; thus they are deemed denied.
11. Intervenors acknowledge that Plaintiffs have asserted claims against the United States of America and DOES 1 through 1,000, but Intervenors deny that Plaintiffs are entitled to any remedy or relief against those Defendants.
12. The allegations in Paragraph 12 of the Complaint are directed solely at DOES 1 through 1,000; thus Intervenors need not respond to those allegations. To the extent a response is required, Intervenors deny that Plaintiffs are entitled to any relief against DOES 1 through 1,000.
13. The allegations in Paragraph 13 of the Complaint are directed solely at Defendants; thus Intervenors need not respond to those allegations. To the extent a response is required, Intervenors lack sufficient information to respond to those allegations; thus they are deemed denied.
14. The allegations in Paragraph 14 of the Complaint are directed solely at Defendants; thus Intervenors need not respond to those allegations. To the extent a response is required, Intervenors deny those allegations.
15. Intervenors admit the allegations in Paragraph 15 of the Complaint.
16. Intervenors admit the allegations in Paragraph 16 of the Complaint, except to note that Plaintiffs have slightly misquoted the language of 28 U.S.C. § 1738c.
17. Intervenors deny the allegations in Paragraph 17 of the Complaint.
18. Intervenors deny the allegations in Paragraph 18 of the Complaint.
19. Intervenors deny the allegations in Paragraph 19 of the Complaint.
20. Intervenors deny the allegations in Paragraph 20 of the Complaint.
21. Intervenors deny the allegations in Paragraph 21 of the Complaint.
22. Intervenors deny the allegations in Paragraph 22 of the Complaint.
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683907...
23. Intervenors deny the allegations in Paragraph 23 of the Complaint. 24. Intervenors deny the allegations in Paragraph 24 of the Complaint. 25. Intervenors deny the allegations in Paragraph 25 of the Complaint. 26. Intervenors deny the allegations in Paragraph 26 of the Complaint. 27. Intervenors deny the allegations in Paragraph 27 of the Complaint. 28. Intervenors deny the allegations in Paragraph 28 of the Complaint. 29. Intervenors deny the allegations in Paragraph 29 of the Complaint, except to admit that Proposition 8 appeared on California’s November 2008 ballot, and that Proposition 8 amended the California Constitution to state that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. 30. The remainder of the Complaint is a prayer for relief that does not require a response. To the extent that a response is required, Intervenors deny that Plaintiffs are entitled to, or that this Court has jurisdiction to grant, the relief requested. 31. Intervenors deny each and every allegation not expressly admitted herein.

First Affirmative Defense Plaintiffs have failed to state a claim upon which relief can be granted.

Second Affirmative Defense Plaintiffs lack standing to assert the claims in their Complaint.

Defendants are immune from suit.

Third Affirmative Defense

Fourth Affirmative Defense Defendants’ acts were not the proximate cause of Plaintiffs’ alleged injuries.

Fifth Affirmative Defense Neither the challenged provisions nor Defendants have deprived Plaintiffs of any right or privilege guaranteed by the United States Constitution.
WHEREFORE, Intervenors respectfully request that this Court dismiss Plaintiffs’ claims with prejudice, deny Plaintiffs’ prayer for relief, order Plaintiffs to pay Intervenors’ costs and attorneys’ fees, and grant other relief deemed just and proper.
Dated: April 8, 2009
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<<signature>>

Andrew P. Pugno (CA Bar No 206587)

ATTORNEYS FOR PROPOSED Intervenors

*

Pro hac vice applications to be filed

4

 
 Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683904...

2009 WL 1683904 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur SMELT et al., Plaintiffs, v.
UNITED STATES OF AMERICA et al., Defendants, and
Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson; and ProtectMarriage.com - Yes on 8, a Project of California Renewal,
Proposed Intervenors.
No. SACV-09-286 DOC (MLGx). May 6, 2009.

Proposed Intervenors’ Reply Memorandum in Support of Motion to Intervene

Brian W. Raum (NY Bar No. 2856102)*, James A. Campbell (OH Bar No. 0081501)*, Alliance Defense Fund, 15100 North 90th Street, Scottsdale, Arizona 85260, Phone: 480-444-0020, Fax: 480-444-0028, Email: braum @telladf.org, Email: jcampbell@telladf.org.
Andrew P. Pugno (CA Bar No. 206587), Law Offices of Andrew P. Pugno, 101 Parkshore Drive, Suite 100, Folsom, California 95630, Phone: 916-608-3065, Fax: 916-608-3066, Email: andrew@pugnolaw.com.
Sam Kim (CA Bar No. 212964), Michael Parker (CA Bar No. 138253), Sam Kim and Associates, PC, 5661 Beach Blvd., Buena Park, CA 90621, Phone: 714-736-5501, Fax: 714-736-9901, Attorneys for Proposed Intervenors.
Footnotes

The Honorable David O. Carter. Hearing Date: May 11, 2009

Hearing Time: 8:30 a.m.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........................................................................................................................................................

ii

ARGUMENT .......................................................................................................................................................................................

1

I. Plaintiffs’ Opposition To The Motion To Intervene Was Untimely .............................................................................

1

II. Plaintiffs Do Not Address The Relevant Legal Principles .............................................................................................

1

III. Proposed Intervenors Will Present “Unique” Legal Arguments, And Their Interests Are Not Adequately

2

Represented By Existing Parties ...................................................................................................................................................

CONCLUSION ...................................................................................................................................................................................

4

1

Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683904...

TABLE OF AUTHORITIES

FEDERAL CASES

Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ................................................................

1, 2

Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ........................................................

1, 2

STATE CASES

In re Marriage Cases, 43 Ca.4th 757, 76 Cal.Rptr.3d 683 (Cal. 2008) ..........................................................

2

Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006) ......................................................................

3

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

Cal. Fam. Code § 308.5 (2000) .....................................................................................................................................

2

Central District of California Local Rule 7-9 ..........................................................................................................

1

Central District of California Local Rule 7-12 ........................................................................................................

1

ARGUMENT
I. Plaintiffs’ Opposition To The Motion To Intervene Was Untimely.
Local Rule 7-9 requires that all opposing papers shall be filed “not later than ... fourteen (14) days before the date designated for the hearing of the motion ....” The hearing for the Motion to Intervene is scheduled for May 11, 2009, but Plaintiffs’ Opposition to Motion to Intervene was not dated until May 1, 2009, which is after the 14-day deadline. (It is unclear when Plaintiffs filed their Opposition, but Proposed Intervenors did not receive it until May 5, 2009, which explains why Proposed Intervenors did not file this reply memorandum until May 6, 2009.) Thus, Plaintiffs opposing papers were untimely.
Local Rule 7-12 prescribes two possible consequences for a party’s failure to file his opposing papers within the relevant deadline. First, “[t]he Court may decline to consider any memorandum or other paper not filed within the deadline set by order or local rule.” Id. Or “the failure to file [papers] within the deadline[] may be deemed consent to the granting ... of the motion.” Id. Proposed Intervenors ask that the Court refuse to consider Plaintiffs’ Opposition to the Motion to Intervene or, alternatively, deem Plaintiffs to have consented to the request.
II. Plaintiffs Do Not Address The Relevant Legal Principles.
In their opposing papers, Plaintiffs argue only that Proposed Intervenors should not be allowed to intervene because they do not present a “unique legal argument.” The relevant legal standard for mandatory intervention, however, does not focus on whether Proposed Intervenors will present a “unique legal argument,” but instead on the following four requirements: (1) the intervention motion must be timely filed; (2) the applicant must have a “significantly protectable” interest relating to the subject of the action; (3) a showing that the disposition of the action might, as a practical matter, impair the applicant’s ability to protect its interest; and (4) a showing that the applicant’s interest might be inadequately represented by the existing parties. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817-18 (9th Cir. 2001) (citing Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996)). Plaintiffs do not specifically address these factors.
By objecting to the alleged lack of “uniqueness” in Proposed Intervenors’ likely arguments, Plaintiffs contest only one consideration under one of the four mandatory intervention factors-the adequacy of representation by existing parties. Plaintiffs thus apparently concede that Proposed Intervenors have satisfied the other three factors.
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1683904...
III. Proposed Intervenors Will Present “Unique” Legal Arguments, And Their Interests Are Not Adequately Represented By Existing Parties.
It is important to clarify an incorrect assertion in Plaintiffs’ Opposition to Motion to Intervene. Plaintiffs state that Proposed Intervenors “previously intervene[d] in this same case.” But Proposed Intervenors have never before intervened in this case. Plaintiffs apparently believe that Proposed Intervenors are the same persons and organization who intervened in the previously litigated case, Smelt v. County of Orange, No. SACV 04-1042 GLT (MLGx). But they are not.
Proposed Intervenors demonstrated in their Memorandum of Points and Authorities in Support of Motion to Intervene the many reasons why their interests are inadequately represented by the existing parties. In doing so, Proposed Intervenors have shown, among other things, that they will present arguments that will likely differ from those asserted by the existing parties. That assertion is not based on speculation, but is supported from past experience.
In 2000, Californians enacted a statutory initiative that defined “marriage,” like Proposition 8 does, as a union between “a man and a woman.” Cal. Fam. Code § 308.5 (2000). California Attorney General, Edmund G. Brown, unsuccessfully defended that statute against state constitutional attack. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683 (Cal. 2008). When litigating that case, he presented only two state interests for defining marriage as the union of a man and a woman: (1) the government’s interest in maintaining its longstanding definition of marriage; and (2) its interest in affirming the will of its citizens. See Answer Brief of State of California and the Attorney General to Opening Brief on the Merits, In re Marriage Cases, No. S147999, at pp. 43-54 (attached to Proposed Intervenors’ Memorandum of Points and Authorities in Support of Motion to Intervene as Exhibit L). Here, Proposed Intervenors intend to argue additional state interests including but not limited to: promoting stability in relationships between a man and a woman because they naturally (and at times accidentally) produce children; and promoting the statistically optimal child-rearing household where children are raised by both a mother and a father. The Attorney General has proven unwilling to argue these state interests, which have been found by other courts to satisfy constitutional review. See, e.g., Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1 (N.Y. 2006). Importantly, the Attorney General does not dispute that he will not address these additional arguments raised by Proposed Intervenors.
Not only has Attorney General Brown proven unwilling to make arguments that Proposed Intervenors plan to present, his view of Proposition 8 is different from that of Proposed Intervenors-specifically, he believes that Proposition 8 is unconstitutional. In the suit currently pending before the California Supreme Court, Attorney General Brown argues that “Proposition 8 should be invalidated ... because it abrogates fundamental rights ... without a compelling interest.” See Answer Brief in Response to Petition for Extraordinary Relief, Strauss v. Horton, No. S168047, at p. 75 (attached to Proposed Intervenors’ Memorandum of Points and Authorities in Support of Motion to Intervene as Exhibit K). The Attorney General’s deputy communicated this message more pointedly at oral argument, when he identified himself as a “challenger” to Proposition 8. See California Supreme Court Website, Proposition 8 Cases, available at http:// www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm (linking to audio and video coverage of the oral argument). The Attorney General has not disputed these facts. This Court should thus conclude that a self-identified “challenger” to Proposition 8 will not adequately represent the interests of Proposed Intervenors, who diligently labored for its enactment.
CONCLUSION
Proposed Intervenors have satisfied the requirements for both mandatory and permissive intervention. The California Attorney General will not adequately represent Proposed Intervenors’ interests because he has argued that Proposition 8 should be invalidated, and he will not present all Proposed Intervenors’ arguments. This Court should thus allow Proposed Intervenors to intervene in this action.
Dated: May 6, 2009
/s/Brian W. Raum
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Brian W. Raum (NY Bar No. 2856102)* * Admitted pro hac vice.

ATTORNEYS FOR PROPOSED INTERVENORS

*

Admitted pro hac vice

4

 
 Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 1683905...

2009 WL 1683905 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California.
Arthur SMELT and Christopher Hammer, Plaintiff, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, Inclusive, Defendant.

No. SACV-09-286 DOC (MLGx). June 11, 2009.
Memorandum of Points and Authorities in Support of Motion to Dismiss Action Against Defendant State of California for Failure to State A Claim [Fed. R. Civ. P. 12(b)(6)]
Edmund G. Brown Jr., Attorney General of California, Jonathan K. Renner, Senior Assistant Attorney General, Stephen P. Acquisto, Supervising Deputy Attorney General, Mark R. Beckington, Deputy Attorney General, State Bar No. 126009, 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, Telephone: (213) 897-1096, Fax: (213) 897-1071, E-mail: Mark.Beckington@doj.ca.gov, Attorneys for Defendant State of California.

Judge: The Hon. David O. Carter. Date: July 13, 2009

Time: 8:30 a.m.

Ctrm: 9D

Trial Date: None

TABLE OF CONTENTS

INTRODUCTION ..............................................................................................................................................................................

2

STATEMENT OF THE CASE .....................................................................................................................................................

3

I. THE FIRST SMELT LAWSUIT AND THE MARRIAGE CASES DECISION ......................................................

3

II. PROPOSITION 8 AND THE STRAUSS v. HORTON DECISION .........................................................................

6

III. THE PLAINTIFFS’ CLAIMS ................................................................................................................................................

7

ARGUMENT

I. THE COURT MAY DISMISS A CLAIM FOR RELIEF PURSUANT TO RULE 12(B)(6) WHEN THE

9

PLAINTIFF LACKS STANDING TO SUE ............................................................................................................................

II. PLAINTIFFS LACK STANDING TO CHALLENGE PROPOSITION 8 BECAUSE CALIFORNIA

10

LAW RECOGNIZES THEIR MARRIAGE AS VALID .....................................................................................................

CONCLUSION ...................................................................................................................................................................................

13

TABLE OF AUTHORITIES

CASES

Council of Insurance Agents & Brokers v. Molasky-Arman 522 F. 3d 925

10

(9th Cir. 2008) .........................................................................................................................

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In re Marriage Cases (2008) 43 Cal. 4th 757, 76 Cal. Rptr. 2d 683 .................... Lujan v. Defenders of Wildlife 504 U.S. 555 (1992) .................................................. Perry v. Schwarzenegger Northern District case no. CV09-2292 ......................... Sacks v. Office of Foreign Assets Control 466 F. 3d 764 (9th Cir. 2006) ........... Schreiber Distributing Co. v. Serv-Well Furniture Co. 806 F. 2d 1393 (9th Cir. 1986) .................................................................................................................................. Smelt v. County of Orange 374 F. Supp. 2d 861 (C.D. Cal. 2005) ....................... Smelt v. County of Orange 447 F. 3d 673 (9th Cir. 2006) ....................................... Sosna v. Iowa 419 U.S. 393(1975) ................................................................................... Steel Co. v. Citizens for a Better Environment 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ....................................................................................................... Strauss v. Horton (May 26, 2009) 2009 WL 1444594, 93 Cal. Rptr. 2d 591 ..... Warth v. Seldin 422 U.S. 491, 95 S.Ct. 2197, 45 L.Ed.2d 343................................. Weisbach v. County of Los Angeles 119 F. 3d 778....................................................... Williams v. Boeing Co. 517 F. 3d 1120 (9th Cir. 2008) ............................................ STATUTES 1 U.S.C. § 7 .............................................................................................................................. 28 U.S.C. § 1738C ................................................................................................................. California Family Code § 300 ............................................................................................ California Family Code § 308.5 ........................................................................................ CONSTITUTIONAL PROVISIONS U.S. Cons, art. I, § 7.5 ........................................................................................................... COURT RULES Fed. R. Civ. P. 12(b)(6) ........................................................................................................

passim 10 2 9 13
3, 4, 5, 6 4, 5 10 12
2, 6, 7, 11 12 9 10
8 8 3, 5 3, 5, 6
6
2, 9

INTRODUCTION
On May 26, 2009, the California Supreme Court issued its highly anticipated decision in a set of consolidated cases challenging the validity of Proposition 8 under the California Constitution. Although it upheld Proposition 8 as a valid constitutional amendment, the Court narrowly construed the measure’s scope and, most importantly for this motion, held that Proposition 8 did not retroactively apply to same-sex marriages solemnized before the measure was approved by the voters in the November 2008 election. “Those marriages,” wrote the court, “remain valid in all respects.” Strauss v. Horton (May 26, 2009) 2009 WL 1444594 at 65, 93 Cal. Rptr. 2d 591, 680.
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Strauss leaves no doubt that same-sex marriages lawfully occurring in California before the November election remain valid and recognized under California law notwithstanding the passage of Proposition 8. This means that Plaintiffs, a same-sex couple who allege that they were lawfully married in California before the election, lack standing to challenge the facial validity of Proposition 8 under the United States Constitution. As for this challenge, Plaintiffs are unable to establish any of the essential elements of standing that would demonstrate the presence of a “case or controversy” within the meaning of Article III. Quite simply, there is no relief that this Court can grant Plaintiffs that California has not already recognized.
Because Plaintiffs lack standing to bring any of the claims alleged in their complaint against the State of California, the state must be dismissed from this action under Federal Rule of Civil Procedure 12(b)(6). Moreover, because there is no possibility that Plaintiffs can amend these claims to assert standing, the action against the state should be dismissed without leave to amend.
It is not unlikely that the constitutionality of Proposition 8 will be challenged by litigants in other federal court proceedings. Indeed, at least one highly publicized challenge has already been filed in the Northern District: Perry v. Schwarzenegger, Northern District case no. CV09-2292. But if such challenges are to be heard by the federal courts, they must be brought by plaintiffs who come with sufficient standing to satisfy Article III. The plaintiffs in this case, their marriage unaffected in any way by the passage of Proposition 8, lack standing to sue and are not the proper parties to present this challenge.
STATEMENT OF THE CASE
I. THE FIRST SMELT LAWSUIT AND THE MARRIAGE CASES DECISION.
This case is the second time that Plaintiffs Arthur Smelt and Christopher Hammer have challenged the constitutionality of California marriage laws in federal court. In the previous case (Smelt v. County of Orange, Central District case no. SACV 04-1042), which was the subject of published opinions in the district court and the Ninth Circuit, Plaintiffs’ claims against the State of California were dismissed as moot after the California Supreme Court held that the state’s ban on same-sex marriage violated the state Constitution. In re Marriage Cases (2008) 43 Cal. 4th 757, 76 Cal. Rptr. 2d 683.
In this initial lawsuit, filed in 2004, Plaintiffs alleged that the Orange County Clerk had denied them a marriage license because they were a couple of the same sex. Smelt v. County of Orange, 374 F. Supp. 2d 861, 864 (C.D. Cal. 2005). In addition to suing the County of Orange, Plaintiffs sued the State Registrar of Vital Statistics and the Department of Health Services, alleging that California statutes prohibiting same-sex marriage violated provisions of the United States Constitution, including the Due Process and Equal Protection Clauses. Id. Among other statutes, Plaintiffs challenged California Family Code section 300, which defined marriage as “a personal relation arising out of a civil contract between a man and a woman,” and section 308.5, which provided that “[o]nly marriage between a man and a woman is valid or recognized in California.” Id.
Plaintiffs also challenged the constitutionality of the federal Defense of Marriage Act (“DOMA”). Smelt v. County of Orange, 374 F. Supp. 2d at 864. They asserted that section 2 of the DOMA, which provides that no state is required to recognize a relationship between a same-sex couple treated as marriage by another state, violated the Full Faith and Credit Clause of the United States Constitution.1 Id. at 865. And they asserted that section 3 of the DOMA, which defines marriage for purposes of federal law, violated the Due Process and Equal Protection Clauses of the U.S. Constitution and their right of privacy.2 Id. At the Court’s invitation, the United States intervened to respond to the DOMA challenge. Id.

Footnotes

1

Section 2 of the DOMA provides: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give

effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship

between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a

right or claim arising from such relationship.” 28 U.S.C. § 1738C.

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In his published decision, Judge Taylor granted the state defendants’ motion to abstain and to stay the part of the case challenging the state statutes pending resolution of In re Marriage Cases in the California Supreme Court. Smelt v. County of Orange, 374 F. Supp. 2d at 865-870. As for the DOMA claims, Judge Taylor held that plaintiffs lacked standing to challenge Section 2, and, although he found that they had standing to challenge section 3, upheld that section as constitutional. Id. at 870-880.
Affirming in part and reversing in part, the Ninth Circuit upheld Judge Taylor’s decision to abstain from deciding the constitutionality of the state marriage laws until the California Supreme Court had resolved their validity under the state Constitution. Smelt v. County of Orange, 447 F. 3d 673, 678-682 (9th Cir. 2006). Further, the Ninth Circuit agreed that plaintiffs lacked standing to challenge section 2 of the DOMA. Id. at 682-683. But the appellate court concluded that plaintiffs also lacked standing to challenge section 3 of the DOMA and held that the district court should not have reached the question of its constitutionality. Id. at 683-686. Therefore, while upholding the decision to abstain from the state claims and to dismiss the section 2 claim, the Ninth Circuit vacated the district court’s decision on the section 3 claim and remanded with instructions to dismiss that claim as well. Id. at 686.
In May 2008, the California Supreme Court issued its long-awaited decision in In re Marriage Cases. Holding that the statutes violated the California Constitution, the Court struck down Family Code section 308.5 in its entirety and language in Family Code section 300 limiting marriage to a union between a man and a woman. In re Marriage Cases, 43 Cal. 4th at 857.
After the opinion in Marriage Cases was issued, the district court in the first Smelt case (now reassigned to Judge Carter) dismissed the action on remand from the Ninth Circuit. (See Request for Judicial Notice, Order Dismissing Case Pursuant to Ninth Circuit Order.) In its order, the district court took note of the Marriage Cases decision, adding that plaintiffs “were subsequently married.” (Id. at 2.) Addressing the state law claims, the district court wrote:
With regard to the challenges of California state-law, the California Supreme Court resolved these challenges based on the state Constitution. Thus, there is no need to resolve the Federal Constitutional issues, absent some subsequent change in law. Accordingly this claim is hereby DISMISSED.
(Id. at 2 (original emphasis).)
The district court specified that the state law claims were dismissed with prejudice. Id. Additionally, the court dismissed the section 2 and section 3 DOMA claims. Id.
II. PROPOSITION 8 AND THE STRAUSS V. HORTON DECISION.
In the November 2008 election, after the decision in Marriage Cases and the dismissal of the first Smelt lawsuit, California voters approved Proposition 8. This measure added the following provision to the California Constitution: “Only marriage between a man and a woman is valid or recognized in California.” Cal. Const., art. I, § 7.5. This wording was identical to the wording of Family Code section 308.5, found unconstitutional in Marriage Cases.
The measure was immediately challenged in three original petitions filed in the California Supreme Court, later consolidated under the lead case of Strauss v. Horton, no. 168047.3 In accepting the petitions for review, the Supreme Court directed the parties to brief three issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? Strauss v. Horton, 2009 WL 1444594 at 13 fn. 4.

2

Section 3 of the DOMA 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.” 1 U.S.C. § 7.

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The Court upheld Proposition 8 as a constitutional amendment validly approved through the initiative process. Strauss v. Horton, 2009 WL 1444594 at 43-54. Additionally, the Court held that Proposition 8 did not violate the separation of powers doctrine. Id. at 57-59.
On the third issue, the measure’s impact on existing same-sex marriages, the court held that Proposition 8 “should be interpreted to apply prospectively and not to invalidate retroactively the marriages of same-sex couples performed prior to its effective date.” Id. at 62. “[A]pplying ... well-established principles of interpretation relating to the question of retroactivity,” the Court concluded that “Proposition 8 cannot be interpreted to apply retroactively so as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8.” Id. at 65. Therefore, “[t]hose marriages remain valid in all respects.” Id.
Moreover, Strauss interpreted Proposition 8 in a “limited fashion” and construed the measure “as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” Strauss v. Horton, 2009 WL 1444594 at 19. “Accordingly, ... those couples continue to possess ... ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage,’ including, ‘most fundamentally, the opportunity of an individual to establish--with the person with whom the individual has chosen to share his or her life-an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.’ ” Id. at 20, quoting In re Marriage Cases, supra, 43 Cal. 4th at p. 781 (original emphasis).
III. THE PLAINTIFFS’ CLAIMS.
Plaintiffs commenced this lawsuit on December 29, 2008 in the aftermath of Proposition 8 by filing their Complaint for Declaratory and Injunctive Relief in Orange County Superior Court. The Complaint names the United States of America and the State of California as defendants along with unnamed Does 1 through 1,000. On March 9, 2009, the United States removed the action to the district court.
In their complaint, Plaintiffs allege that “they are a same-sex couple who married lawfully within the State of California on or subsequent to July 10, 2008.” (Compl., ¶2.)
Most of the substantive allegations of the complaint are directed at the DOMA and the United States, not Proposition 8 and the State of California. (Compl., ¶¶ 6-8, 10-28.) With respect to the State of California, all of the substantive allegations appear in paragraph 29, which alleges:
Defendant, State of California, caused Proposition 8 to be published on the ballot for the November 4, 2008 election. Proposition 8 amends the California Constitution to defined (sic) marriage as between a man and a woman and to prohibit same gender marriage. As amended, the State of California Constitution violates the United States Constitution as follows: Violation of the Equal Protection and Due Process Clauses and violation of the Right to Life, Liberty and the Pursuit of Happiness. The prohibition further violates the right to be free from an undue invasion of the Right of Privacy; and violates the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People and the Right to Travel, and The Right of Free Speech.
(Compl., ¶ 29.)
The complaint does not allege separate claims for relief, but the prayer asks for a declaration that Proposition 8 violates provisions of the United States Constitution, including the Equal Protection and Due Process Clauses. (Compl. at p. 6 [prayer, ¶ 5].) Further, Plaintiffs ask for an injunction “mandating and compelling the State of California to eliminate from its Constitution the amendment which bans same gender marriage and defines marriage as between a man and woman commonly known as Proposition 8.” (Id. at p. 7 [prayer, ¶ 6].) Finally, Plaintiffs ask for “an injunctive order mandating the use of gender-neutral terms in all legislation affecting marriage.” (Id. at p. 7 [prayer, ¶ 7].)
With respect to the DOMA claims, Plaintiffs appear to focus again on sections 2 and 3 (1 U.S.C. § 7; 28 U.S.C. § 1738C), the subject of their earlier challenge. (Compl. at ¶¶ 15-16.) Plaintiffs allege that these sections violate various provisions of the U.S. Constitution. (Id. at ¶¶ 17-28.) They ask for a declaratory judgment that these provisions are unconstitutional. (Id. at p. 7
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[prayer, ¶¶ 1-5].)
ARGUMENT
I. THE COURT MAY DISMISS A CLAIM FOR RELIEF PURSUANT TO RULE 12(B)(6) WHEN THE PLAINTIFF LACKS STANDING TO SUE.
Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” In the Ninth Circuit, a Rule 12(b)(6) motion is the appropriate vehicle to attack a complaint that fails to allege standing. Sacks v. Office of Foreign Assets Control, 466 F. 3d 764, 771 (9th Cir. 2006) [“To survive a Rule 12(b)(6) motion to dismiss, Sacks must allege facts in his Amended Complaint that, if proven, would confer standing upon him.”]
“[A] Rule 12(b)(6) motion to dismiss for failure to state a claim can be used when plaintiff has included allegations in the complaint that, on their face, disclose some absolute defense or bar to recovery.” Schwarzer, et. al., Federal Civ. Pro. Before Trial (The Rutter Group 2009) § 9:193, p. 9-34. On a Rule 12(b)(6) motion, “[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical facts.” Weisbach v. County of Los Angeles, 119 F. 3d 778, 783 fn. 1 (9th Cir. 1997).
Here, plaintiffs allege that they were lawfully married in California in July 2008 before the passage of Proposition 8. Moreover, their previous lawsuit was dismissed with prejudice in August 2008, before passage of the measure, based in part on the court’s finding that plaintiffs were in fact married following the In re Marriage Cases decision. Therefore, the question of Plaintiffs’ standing to challenge Proposition 8 at this time may be properly assessed under Rule 12(b)(6).
II. PLAINTIFFS LACK STANDING TO CHALLENGE PROPOSITION 8 BECAUSE CALIFORNIA LAW RECOGNIZES THEIR MARRIAGE AS VALID.
“Article III of the Constitution limits the judicial power of the United States to the resolution of ‘cases’ and ‘controversies.’ ” Council of Insurance Agents & Brokers v. Molasky-Arman 522 F. 3d 925, 930 (9th Cir. 2008). “[P]arties cannot ‘invoke the judicial power of the United States in a case that does not present an actual case or controversy.’ ” Williams v. Boeing Co., 517 F. 3d 1120, 1129 (9th Cir. 2008), Sosna v. Iowa, 419 U.S. 393, 398 (1975).
The doctrine of standing is one of the elements of justiciability in the federal courts, and “the core component of standing is an essential and unchanging part of the case-or-controversy requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing” contains three elements: First, the plaintiff must have suffered an ‘injury in fact’--an invasion of a legally protected interest which is (a) concrete and particularized, [cit. omit] and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’ ” [cit omit]. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court.” [Cit. omit.] Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” [Cit. omit.]
Id. (internal brackets omitted).
Here, the complaint demonstrates that Plaintiffs cannot establish any of the core components of standing with respect to their claims against the State of California.
With respect to the first element, Plaintiffs have not suffered an “injury in fact” because Proposition 8, as interpreted by the California Supreme Court, has no effect on their marriage. In holding that Proposition 8 lacks retroactive effect, the California Supreme Court recognized that the estimated 18,000 same-sex marriages performed before the election, including
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Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 1683905...
Plaintiffs’ marriage, remain valid in all respects. See Strauss v. Horton, 2009 WL 1444594 at 65. Thus, plaintiffs’ legally protected interest--their marriage-has not in any sense been invaded by the measure’s enactment.
This conclusion is bolstered by the California Supreme Court’s determination that Proposition 8 did not alter any of the substantive rights of same-sex couples recognized by In re Marriage Cases other than the right to have their relationship legally afforded the designation of marriage. Strauss v. Horton, 2009 WL 1444594 at 18-22. As noted above, although Proposition 8 restricts the designation of marriage to opposite-sex couples only, “in all other respects same-sex couples retain the same substantive protections ... as those accorded to opposite-sex couples.” Id at 22. Unlike unmarried same-sex couples, Plaintiffs retain the only right impacted by Proposition 8--the designation of marriage--while also retaining all of the rights left uninfringed by the measure.
Moreover, Plaintiffs’ inability to satisfy the injury-in-fact element is virtually compelled by the district court’s determination that their marriage mooted the prior lawsuit. (See Request for Judicial Notice, Order Dismissing Case.) Previously, the district court held that In re Marriage Cases and the Plaintiffs’ subsequent marriage mooted their claims against the State. (Id. at p. 2). Plaintiffs are in no different situation today. They retain all of the substantive rights that were left unaffected by Proposition 8 and retain the designation of marriage that was not retroactively altered by Proposition 8. Thus, for the same reasons their earlier challenge to California marriage laws was rendered moot, Plaintiffs’ challenge to Proposition 8 falters for lack of an injury-in-fact that would support standing.
The fact that unmarried same-sex couples might have sufficient standing to challenge the constitutionality of Proposition 8 does nothing to confer standing on Plaintiffs. “The claim must be for injury to plaintiff’s own legal rights and interests, rather than the legal or interests of third parties.” Schwarzer, § 2:1207, p. 2E-3 (original emphasis); accord: Warth v. Seldin, 422 U.S. 491, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 [“[E]ven when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”]
The absence of an injury-in-fact disposes of the remaining elements of causation and redressability. Without a cognizable injury, Plaintiffs cannot establish a connection between an actionable harm and any act of the defendant. And Plaintiffs do not seek any relief that would redress any harm actually suffered by them. As the United States Supreme Court has said: “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Plaintiffs will be in the identical situation-married with rights recognized by California Supreme Court--whether the court overturns Proposition 8 under the U.S. Constitution or upholds it. Plainly, standing may not rest on such shallow ground.
Plaintiffs’ allegation that the “refusal of all states and jurisdictions of the United States of America” to recognize their marriage has resulted “in the denial of hundreds of state law rights, benefits and responsibilities, and more than a thousand federal rights, benefits, and responsibilities” is insufficient to confer standing. (Compl. at ¶ 3.) This conclusory allegation is plainly directed to the DOMA claims, not the Proposition 8 claims; it would make little sense to allege that Plaintiffs are be denied rights under California law by Proposition 8 when the California Supreme Court has expressly held otherwise. Moreover, Plaintiffs fail to allege that the State of California or any state actor has failed to recognize the legitimacy of their marriage or has denied them any benefit available under state law.
Because Plaintiffs cannot establish any of the essential elements of standing, their complaint must be dismissed. Moreover, because no allegation consistent with the pleading could possibly cure this deficiency, the state respectfully submits that the motion to dismiss should be granted without leave to amend. See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F. 2d 1393, 1401 (9th Cir. 1986) [recognizing that a court need not grant leave where “the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.”]
CONCLUSION
As a couple who allege that they were lawfully married before the passage of Proposition 8, a measure the California Supreme Court has held does not retroactively apply to marriages performed before its approval by the voters, Plaintiffs lack
7

Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 1683905...

standing to challenge its validity under the U.S. Constitution. Defendant State of California therefore respectfully requests that the Court dismiss all claims against the state without leave to amend.

Dated: June 11, 2009

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of California

JONATHAN K. RENNER

Senior Assistant Attorney General

STEPHEN P. ACQUISTO

Supervising Deputy Attorney General

/s/ Mark R. Beckington

MARK R. BECKINGTON

Deputy Attorney General

Attorneys for Defendant State of California

3

The other petitions were Tyler v. State of California, no. 168066, and City and County of San Francisco v. Horton, no. 168078.

8

 
 Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
2009 WL 1683906 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur SMELT and Christopher Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, Defendants.
No. SACV09-00286 DOC (MLGx). June 11, 2009.
Defendant United States of America’s Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof
Tony West, Assistant Attorney General, James J. Gilligan, Assistant Director, W. Scott Simpson, Senior Trial Counsel, Department of Justice, Civil Division, Room 7210, Federal Programs Branch, Post Office Box 883, Washington, D.C. 20044, Telephone: (202) 514-3495, Fax: (202) 616-8470, E-mail: scott.simpson @usdoj.gov, Attorneys for Defendant United States of America.
Date: August 3, 2009
Time: 8:30 a.m.
PLEASE TAKE NOTICE that on Monday, August 3, 2009, at 8:30 a.m., or as soon thereafter as counsel may be heard, the defendant United States of America, by its undersigned counsel, will move for dismissal of this action. The hearing will take place before United States District Judge David O. Carter, in Courtroom 9D of the Ronald Reagan Federal Building and U.S. Courthouse, 411 West Fourth Street, Santa Ana, California.
The defendant United States of America will move to dismiss all of plaintiffs’ claims against the federal Defense of Marriage Act, under Rule 12 of the Federal Rules of Civil Procedure, on the grounds that this Court lacks jurisdiction over plaintiffs’ claims against the United States, given that the State court from which this action was removed lacked such jurisdiction; that plaintiffs lack standing to assert their claims against the United States; and that plaintiffs have failed to state a claim on which relief can be granted.
The motion of the United States will be based on this Notice, the following Memorandum of Points and Authorities, the pleadings and files in this action, such matters of which the Court may take judicial notice, and such oral argument as may take place at the time of the hearing.
This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on June 4, 2009.
Dated: June 11, 2009
Respectfully submitted,
TONY WEST
Assistant Attorney General
JAMES J. GILLIGAN
Assistant Director
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Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...

/s/ W. Scott Simpson W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Federal Programs Branch Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT UNITED STATES OF AMERICA’S MOTION TO DISMISS
TABLE OF CONTENTS

INTRODUCTION ..............................................................................................................................................................................

1

STATUTORY BACKGROUND ..................................................................................................................................................

5

PROCEDURAL HISTORY ...........................................................................................................................................................

7

ARGUMENT .......................................................................................................................................................................................

9

I. This Court Lacks Jurisdiction Over Plaintiffs’ Claims Against the United States Because the State Court

9

Lacked Jurisdiction ............................................................................................................................................................................

II. Plaintiffs’ Claims and Allegations Against the United States Must Be Dismissed for Lack of Standing .....

10

A. The Case or Controversy Requirement of Article III .......................................................................................................

11

B. Plaintiffs Lack Standing to Challenge DOMA’s Reservation of the States’ Authority Regarding

12

Recognition of Same-Sex Marriages Performed in Other States .......................................................................................

C. Plaintiffs Lack Standing to Challenge the Definitions of “Marriage” and “Spouse” Under Federal Law ....

13

D. Plaintiffs Cannot Establish Standing to Seek Certain Sweeping Relief Requested in Their Complaint ........

14

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III. DOMA Is a Valid Exercise of Congress’s Power under the Full Faith and Credit Clause ............................... A. Section 2 is Consistent With Common Law Conflicts Principles ............................................................................... B. Section 2 Was Enacted Under Congress’s Authority to Prescribe the “Effect” of One State’s Acts in Other States .......................................................................................................................................................................................... IV. DOMA Cannot Be Said to Violate an Asserted “Right to Travel” ........................................................................... V. DOMA Is Consistent with Equal Protection and Due Process Principles ................................................................ A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA .......................................................... B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental ..................................... C. DOMA Does Not Rest on a Suspect Classification .......................................................................................................... D. DOMA Satisfies Rational-Basis Review ............................................................................................................................. VI. DOMA Does Not Violate the Right to Privacy ................................................................................................................ VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech ............................................................................. VIII. DOMA Cannot Be Said to Infringe Upon any “Right” under the Ninth Amendment .................................... CONCLUSION ...................................................................................................................................................................................
TABLE OF AUTHORITIES CONSTITUTION U.S. Const. art. III, § 2 ........................................................................... U.S. Const. art. IV, § 1, cl. 2 ............................................................... CASES Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ................... Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L.Ed.2d 391 (1997) ................................................................................. Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532, 55 S. Ct. 518, 79 L. Ed. 1044 (1935) ............................ Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) .................. Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984) .................................................................................................. Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S. Ct. 3172, 92 L.Ed.2d 568 (1986) ........................................................................... Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712

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40
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Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
(9th Cir. 2003) ..........................................................................................
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem) ..........................................................................................................
Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem) ............................................................................................
Baker v. Vermont, 744 A.2d 864 (Vt. 1999) ..................................
Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 10 L. Ed. 274 (1839) ..................................................................................................
Barefoot v. City of Wilmington, 306 F.3d 113, 123 (4th Cir. 2002) ............................................................................................................
Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L.Ed.2d 600 (1975) .................................................................................
Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) ............................................................................................................
Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995) ...........................................................................................
Butler v. Apfel, 144 F.3d 622 (9th Cir.1998) .................................
Califano v. Gautier Torres, 435 U.S. 1, 98 S. Ct. 906, 55 L.Ed.2d 65 (1978) ...................................................................................
Catalano v. Catalano, 170 A.2d 726 (Conn. 1961) .....................
Church of Amer. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004) .........................................................................
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...................................................................................................
Dean v. District of Columbia, 653 A.2d 307, 331-33, 362-64 (D.C. 1995) ................................................................................................
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L.Ed.2d 249 (1989) ......................
Dittman v. California, 191 F.3d 1020 (9th Cir. 1999) ................
Duke Power Co. v. Carolina Envt’l Study Group, Inc., 438 U.S. 59, 98 S. Ct. 2620, 57 L.Ed.2d 595 (1978) ...........................
Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 2309, 159 L.Ed.2d 98 (2004) ......................................

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Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
In re Elko County Grand Jury, 109 F.3d 554 (9th Cir. 1997) ..
Ellis v. Anderson, 901 S.W. 2d 46, 47-48 (Ky. Ct. App. 1995) ............................................................................................................
FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082 (N.D. Cal. 2007) ...................................................................................................
FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) ...................................................
Froehlich v. Wisconsin Dep’t of Corrections, 196 F.3d 800 (7th Cir. 1999) ..........................................................................................
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596, 107 L.Ed.2d 603 (1990) ........................................................................
Glass v. National R.R. Passenger Corp., 570 F. Supp. 2d 1180 (C.D. Cal. 2008) ............................................................................
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ............................................................................................................
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965) .................................................................................
Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985) ....................
Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L.Ed.2d 784 (1980) ..................................................................................................
Hassan v. Wright, 45 F.3d 1063 (7th Cir. 1995) ..........................
Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L.Ed.2d 257 (1993) ..................................................................................................
Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S. Ct. 2281, 45 L.Ed.2d 223 (1975) .................................................................................
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ...............................................................
Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895) ..........................................................................................................
Hong Kong Supermarket v. Kizer, 830 F.2d 1078 (9th Cir. 1987) ............................................................................................................
James v. City of Long Beach, 18 F. Supp. 2d 1078 (C.D. Cal. 1998) ............................................................................................................
Jenkins v. Commissioner, 483 F.3d 90 (2d Cir. 2007) ................

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Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004) ............
In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash. 2004), appeal dismissed Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB (W.D. Wash.) ...................................................
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) ............................................................................................................
Lavine v. Milne, 424 U.S. 577, 96 S. Ct. 1010, 47 L.Ed.2d 249 (1976) ..................................................................................................
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003) .................................................................................
Lofton v. Secretary of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) .............................................................
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ...............................................................................................
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992) ............................................................
Lyng v. Automobile Workers, 485 U.S. 360, 108 S. Ct. 1184, 99 L.Ed.2d 380 (1987) ...........................................................................
Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005) ........................
Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L.Ed.2d 199 (1977) ..................................................................................................
Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167 L.Ed.2d 248 (2007) .................................................................................
McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) .............
McElmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312, 10 L. Ed. 177 (1839) .....................................................................................
Miller v. Stauffer Chem. Co., 581 P.2d 345 (Idaho 1978) .........
Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L. Ed. 411 (1813) ..........................................................................................................................
Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999) ................................
Moore v. Detroit School Reform Bd., 293 F.3d 352 (6th Cir 2002) ............................................................................................................
In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) ..............
Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974) .................................................................................

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Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
National Ass’n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) .
Nebraska v. Bentson, 146 F.3d 676 (9th Cir. 1998) ....................
Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L.Ed.2d 416 (1979) ..................................................................................................
Newbury v. Prisoner Review Bd., 791 F.2d 81 (7th Cir. 1986) ..........................................................................................................................
New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L.Ed. 747 (1932) ................................................................................
Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003) ..........................
Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 59 S. Ct. 629, 83 L. Ed. 940 (1939) ......................
Palmer v. City Nat’l Bank, 498 F.3d 236 (4th Cir. 2007) ..........
Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L.Ed.2d 405 (1976) ..........................................................................................................
Personnel Adm’r v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979) .................................................................................
Powelson v. United States, 150 F.3d 1103 (9th Cir. 1998) .......
Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312, 138 L.Ed.2d 849 (1997) ..................................................................................................
Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L.Ed.2d 1 (1993) .......................................................................................................
Richardson v. City & County of Honolulu, 124 F.3d 1150 (9th Cir. 1997) ..........................................................................................
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989) ...........
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973) ..........................................................................................................
Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996) ..................................................................................................
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996) .............
Rumsfeld v. Forum for Academic & Inst’l Rights, 547 U.S. 47, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006) ................................
Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L.Ed.2d

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233 (1991) ..................................................................................................
Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L.Ed.2d 689 (1999) ..................................................................................................
Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423 (9th Cir. 1984) ..........................................................................................
Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 146-47 (N.Y. App. Div. 2006) San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996) ..........................................................................................
Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991) ..........................................................................................................................
SEC v. Chenery Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947) ...................................................................................
Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969) .................................................................................
Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947 (9th Cir. 1989) ..................................................................................
Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989) ..........................
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) ..............
Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ............................................................................................................
Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) ........
Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936 (9th Cir. 2004) ............................................................................................................
Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) ............................................................................................................
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 140 L.Ed.2d 210 (1998) .....................................................
Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986) ....
Strauss v. Horton, 207 P.3d 48 (Cal. May 26, 2009) ..................
Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S. Ct. 2117, 1 00 L.Ed.2d 743 (1988) .................................................................................
Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) .................................................................................
United States v. Choate, 576 F.2d 165 (9th Cir. 1978) ..............

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United States v. Deters, 143 F.3d 577 (10th Cir. 1998) .............
United States v. Hays, 515 U.S. 737, 115 5. Ct. 2431, 132 L.Ed.2d 635 (1995) .................................................................................
United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 5. Ct. 453, 66 L.Ed.2d 368 (1980) .....................................................
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ...........................
Villegas v. City of Gilroy, 363 F. Supp. 2d 1207 (N.D. Cal. 2005) ............................................................................................................
Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ..................................................................................................
Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 225 8, 13 8 L.Ed.2d 772 (1997) .......................................................................
Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) .................................................
Whitmore v. Arkansas, 495 U.S. 149, 1 10 S. Ct. 1717, 109 L.Ed.2d 135 (1990) .................................................................................
Wilkins v. Zelichowski, 140 A.2d 65 (N.J. 1958) .........................
Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) ............................................................................................................
Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942) .....................................................................................
Willis v. Town of Marshall, N.C., 426 F.3d 251 (4th Cir. 2005) ............................................................................................................
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .............
Yorkshire v. IRS, 829 F. Supp. 1198 (C.D. Cal. 1993) ...............
Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978) ..................................................................................................
STATUTES AND LEGISLATIVE HISTORY 1 U.S.C. § 7 ...............................................................................................
28 U.S.C. § 1257(2) (repealed 1988) ................................................
28 U.S.C. § 1441 ......................................................................................
28 U.S.C. § 1442 ......................................................................................
28 U.S.C. § 1442(a)(1) ..........................................................................

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28 U.S.C. § 1738C ..................................................................................
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) ...............................................................................................
LD 1020, An Act To End Discrimination in Civil Marriage & Affirm Religious Freedom, 2009 Me. Legis. Serv. ch. 82 (West) ..........................................................................................................
HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H. Laws ch. 59 ..........................................................................
S. 115, An Act to Protect Religious Freedom & Recognize Equality in Civil Marriage, 2009 Vt. Acts & Resolves no. 3 ...
H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905 ..............................................................................................................
REGULATIONS AND OTHER ADMINISTRATIVE MATERIALS C.F.R. § 127.303(b)(3) ..........................................................................
C.F.R. § 0.214(a) .....................................................................................
Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8, 1969), reprinted as amended in 42 U.S.C.A. § 2000e note ....................
Exec. Order No. 13, 160, 65 Fed. Reg. 39,773 (June 23, 2000), reprinted in 42 U.S.C. § 2000d note ...................................
The White House, Office of Communications, President on Signing Same Gender Marriage Ban, 1996 WL 533626 (Sept. 22, 1996) ........................................................................................
OTHER AUTHORITIES The Federalist No. 42 (James Madison) (Clinton Rossiter ed., 1961) ....................................................................................................
Restatement (First) of Conflict of Laws § 134 ..............................
Restatement (Second) of Conflict of Laws § 284 ........................

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19 18 18

INTRODUCTION
In recent years, several States have guaranteed gay and lesbian couples the freedom to marry as a basic civil right. See HB 436, An Act Relative to Civil Marriage & Civil Unions, 2009 N.H. Laws ch. 59; LD 1020, An Act To End Discrimination in Civil Marriage & Affirm Religious Freedom, 2009 Me. Legis. Serv. ch. 82 (West); S. 115, An Act to Protect Religious Freedom & Recognize Equality in Civil Marriage, 2009 Vt. Acts & Resolves no. 3; Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008); Good-ridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Yet, as same-sex couples in these States have won what they understandably view as a vital personal right of surpassing importance to their happiness and well-being, other States have reaffirmed the traditional understanding of marriage as the union of a man and a woman as husband and wife, see Varnum, 763 N.W.2d at 878 n.5 - an understanding held as a matter of profound moral and religious conviction by many of their citizens.
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This case does not call upon the Court to pass judgment, however, on the legal or moral right of same-sex couples, such as plaintiffs here, to be married. Plaintiffs are married, and their challenge to the federal Defense of Marriage Act (“DOMA”) poses a different set of questions: whether by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by States that do not recognize same-sex marriage, and whether they are similarly entitled to certain federal benefits. Under the law binding on this Court, the answer to these questions must be no.
DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage. Congress passed DOMA in 1996, at a time when States and their citizens were just beginning to address the legal status of same-sex marriage. Consistent with our federalist system, which allows each State to “serve as a laboratory[,] and try novel social and economic experiments without risk to the rest of the country,” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), DOMA does not address whether a same-sex couple may marry within the United States. Instead, it permits the citizens of each State to decide that question for themselves. To preserve the autonomy of the States in this area, therefore, Section 2 of DOMA provides that each State may decide whether to recognize a same-sex marriage performed under the law of another State.
Section 3, in turn, addresses the effects of new State definitions of marriage on federal programs that tie entitlement to certain benefits to married status. Congress had long conferred various financial and other benefits on the basis of marriage in light of the central role the institution has played in advancing a variety of societal interests. When States began to consider adopting historically novel forms of marriage, Congress took a wait-and-see approach. It codified, for purposes of federal benefits, a definition of marriage that all fifty states had adopted (i.e., that between a man and a woman) and continued to accord financial and other benefits on the basis of that historical definition. At the same time, it cautiously declined to extend federal benefits on the basis of a newer definition of marriage that no States had adopted at the time of DOMA’s passage (and only a very small minority of States have since). Thus, by defining “marriage” and “spouse” as the legal union of a man and a woman and affording federal benefits on that basis, Section 3 of DOMA simply maintained the status quo: it continues the longstanding federal policy of affording federal benefits and privileges on the basis of a centuries-old form of marriage, without committing the federal government to devote scarce resources to newer versions of the institution that any State may choose to recognize.
The plaintiffs in this case, a same-sex couple married under the laws of California, make a number of claims against DOMA. Specifically, they allege that Section 2 violates the Full Faith and Credit Clause and their “right to travel,” that both sections of DOMA violate the Due Process Clause of the Fifth Amendment (including its equal protection component) and their “right to privacy,” and that Section 3 violates their “right of free speech” and their “rights” under the Ninth Amendment. Plaintiffs initially filed this action in State court, and the defendant United States removed it to this Court.
Rather than reaching the merits of these claims, the Court should dismiss this action for lack of subject matter jurisdiction, for two reasons. First, a federal court has no more jurisdiction in a removed case than did the State court before removal, and the United States was immune from suit on plaintiffs’ claims in State court. All claims against the United States should be dismissed on that basis alone. Second, even in absence of that principle, plaintiffs lack standing to challenge either Section 2 or Section 3 of DOMA. Plaintiffs lack standing to challenge Section 2, because they nowhere allege that they have actually been denied any rights or benefits under the laws of another State resulting from the refusal of that State to acknowledge their marital status. They lack standing as well to challenge Section 3 of DOMA, because they do not allege that the federal definitions of “marriage” and “spouse” in Section 3 have ever been applied to them for purposes of any federal law. Plaintiffs fail to allege that they have ever applied for any federal benefits that are available on the basis of married status - let alone that they have been denied any as a result of DOMA. Because they have not been injured by Section 3’s definitions, their challenge to this provision must be dismissed for lack of standing.
On the merits, plaintiffs’ claims that DOMA violates the Full Faith and Credit Clause and their “right to travel” both fail as a matter of law. In allowing each State to withhold its recognition of same-sex marriages performed in other jurisdictions, Congress was merely confirming longstanding conflict-of-laws principles in a valid exercise of its express power to settle such questions under the Full Faith and Credit Clause. That Clause ensures that each State retains the authority to decline to apply another State’s law when it conflicts with its own public policies. DOMA is fully consistent with that constitutional principle, as it permits States to experiment with and maintain the exclusivity of their own legitimate public policies - such as whether that State chooses to recognize or reject same-sex marriages. Similarly, in relation to plaintiffs’ purported “right to travel” claim, DOMA simply does not impinge upon anyone’s ability to travel among the States. Again, it merely permits
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each State to follow its own policy with respect to marriage.
Plaintiffs’ due process and equal protection claims also must be dismissed. Like all federal statutes, DOMA is entitled to a presumption of constitutionality. Because DOMA does not restrict any rights that have been recognized as fundamental or rely on any suspect classifications, it need not be reviewed with heightened scrutiny. Properly understood, the right at issue in this case is not a right to marry. After all, the federal government does not, either through DOMA or any other federal statute, issue marriage licenses or determine the standards for who may or may not get married. Indeed, as noted above - and as evidenced by the fact that plaintiffs have married in California - DOMA in no way prohibits same-sex couples from marrying. Instead, the only right at issue in this case is a right to receive certain benefits on the basis of a same-sex marriage. No court has ever found such a right to federal benefits on that basis to be fundamental - in fact, all of the courts that have considered the question have rejected such a claim. (And even if the right at issue in this case were the right to same-sex marriage, current Supreme Court precedent that binds this Court does not recognize such a right under the Constitution.) Likewise, DOMA does not discriminate, or permit the States to discriminate, on the basis of a suspect classification; indeed, the Ninth Circuit has held that sexual orientation is not a suspect classification.
DOMA therefore must be analyzed under rational-basis review. Under the highly deferential rational basis standard, moreover, a court may not act as superlegislature, sitting in judgment on the wisdom or morality of a legislative policy. Instead, a legislative policy must be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for it, including ones that the Congress itself did not advance or consider. DOMA satisfies this standard.
Individuals are born into, or form, a broad spectrum of human relationships, founded in kinship or affection, whether of spouses, siblings, parent and child, cousins, companions, partners, or otherwise. Yet of all these relationships, Congress has long extended certain federal benefits and protections on the basis of just one - that between a husband and wife (and their minor children). Congress is entitled under the Constitution to address issues of social reform on a piecemeal, or incremental, basis. It was therefore permitted to maintain the unique privileges it has afforded to this one relationship without immediately extending the same privileges, and scarce government resources, to new forms of marriage that States have only recently begun to recognize. Its cautious decision simply to maintain the federal status quo while preserving the ability of States to experiment with new definitions of marriage is entirely rational. Congress may subsequently decide to extend federal benefits to same-sex marriages, but its decision to reserve judgment on the question does not render any differences in the availability of federal benefits irrational or unconstitutional.
Finally, plaintiffs’ other claims must be dismissed as well. First, DOMA does not impinge on plaintiffs’ ability to express their views and therefore does not violate their First Amendment rights. In any event, marriage (whether same-sex or heterosexual) does not constitute expressive conduct under the First Amendment. Second, the right to privacy encompasses only rights that are constitutionally fundamental, and, as noted earlier, the right to receive benefits on the basis of same-sex marriage (as well as same-sex marriage itself) has not been recognized by the courts as a fundamental right. Third, plaintiffs cannot plead a claim under the Ninth Amendment because that provision is not an independent source of rights.
Accordingly, all of plaintiffs’ claims against the United States in this action should be dismissed.
STATUTORY BACKGROUND
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Section 2 of DOMA provides that “[n]o State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” 28 U.S.C. § 1738C. Section 3 of DOMA defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. Specifically, it provides that:
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 wife.
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1 U.S.C. § 7.
The House Judiciary Committee issued a report describing the background and purposes of DOMA. As the Committee explained, DOMA was enacted following the decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), in which a plurality of the Hawaii Supreme Court concluded that the definition of marriage under Hawaii law (as the union of one man and one woman) might warrant heightened scrutiny under the State constitution. See H.R. Rep. No. 104-664, at 2, reprinted in 1996 U.S.C.C.A.N. 2905, 2906. In response, Congress sought both to “preserve [ ] each State’s ability to decide” what should constitute a marriage under its own laws and to “lay[ ] down clear rules” regarding what constitutes a marriage for purposes of federal law. Id. In enacting Section 2 of DOMA, Congress relied on its “express grant of authority,” under the second sentence of the Constitution’s Full Faith and Credit Clause, “to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.” Id. at 25, reprinted in 1996 U.S.C.C.A.N. at 2930. That provision, said the Committee, empowers Congress to “resolv[e] conflicts” between the enactments of the different States, id., and Section 2 of DOMA does so by preserving the power of the States to decline to give effect to the laws of other States respecting same-sex marriage.
The House Judiciary Committee went on to state that Section 3 of DOMA merely codifies, for purposes of federal law, the definition of marriage set forth in “the standard law dictionary.” Id. at 29, reprinted in 1996 U.S.C.C.A.N. at 2935 (citing Black’s Law Dictionary 972 (6th ed. 1990)). In explaining why Congress chose to limit federal marital benefits to opposite-sex couples, the Committee acknowledged that “[t]here are relations of deep, abiding love” between persons of all kinds, “brothers and sisters, parents and children, grandparents and grandchildren,” that “cannot be diminished as loves [just] because they are not ... expressed in marriage.” Id. at 13, reprinted in 1996 U.S.C.C.A.N. at 2917 (internal quotation marks omitted). Nevertheless, the Committee stressed, DOMA grants “preferred legal status” to a particular kind of loving relationship - heterosexual marriage - based on four asserted government interests. Id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916. First, the Committee advanced an interest in “defending and nurturing the institution of traditional, heterosexual marriage” because of the role it plays in “procreation and child-rearing.” Id. at 12, 15, reprinted in 1996 U.S.C.C.A.N. at 2916, 2919. Second, the Committee believed that DOMA furthered Congress’s asserted interest in “traditional notions of morality.” Id. at 15, reprinted in 1996 U.S.C.C.A.N. at 2919. Third, the Committee maintained that DOMA advances the government’s interest in “protecting state sovereignty and democratic self-governance.” Id. at 16, reprinted in 1996 U.S.C.C.A.N. at 2920. Fourth, the Committee explained that DOMA advances the government’s interest in “preserving scarce government resources.” Id. at 18, reprinted in 1996 U.S.C.C.A.N. at 2922.
PROCEDURAL HISTORY
Plaintiffs first challenged DOMA in an action filed in this Court on September 1, 2004, Arthur Bruno Smelt, et al. v. County of Orange, California, et al., Case No. SACV04-1042 GLT (MLGx). In that action, they alleged that DOMA violated the Due Process Clause, principles of Equal Protection, and the Full Faith and Credit Clause. Ruling on cross-motions for summary judgment, this Court held that plaintiffs lacked standing to challenge Section 2 of DOMA. The Court’s reasoning was two-fold: First, because plaintiffs were not married at the time under the law of any State, there was no “public act... respecting a relationship between persons of the same sex” to which the statute could apply. Smelt v. County of Orange, 374 F. Supp. 2d 861, 870-71 (C.D. Cal. 2005) [hereinafter Smelt I]; see 28 U.S.C. § 1738C. And second, since plaintiffs did not “claim to have plans to seek recognition of their eventual California marriage in another state,” they had not established an “imminent injury” due to Section 2. 374 F. Supp. at 871. The Court then addressed the merits of Section 3 (the definitional section) and rejected all of plaintiffs’ challenges, holding that Section 3 does not discriminate on the basis of a suspect classification, that it does not impinge upon a right held by the courts as fundamental, and that it is “rationally related to the legitimate government interest[s]” that Congress identified in enacting DOMA. 374 F. Supp. 2d at 880.
Plaintiffs appealed, and the Ninth Circuit held that they lacked standing to challenge either section of DOMA. Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) [hereinafter Smelt II]. As to Section 2, the court essentially agreed with this Court’s rationale. See id. at 683. In relation to Section 3, the appellate court reasoned:
DOMA itself simply does not injure [the plaintiffs] or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough. In short, they have not spelled out a legally protected interest, much less one that was injured in a
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concrete and particularized way.

Id. at 684 (citations omitted). The court also noted, in addition to this holding regarding constitutional standing, that plaintiffs lacked prudential standing because their challenge constituted a “generalized grievance [ ] pervasively shared,” such that “[a]ny citizen or taxpayer could as easily claim that some application or other of the DOMA definition to some as yet undesignated statute, which confers some public benefit or right, might exclude that person because DOMA requires a legal union, a man, and a woman.” Id. at 684, 685. On remand, this Court dismissed the case on August 29, 2008, as directed by the Court of Appeals.
The plaintiffs then filed a new Complaint challenging DOMA on November 3, 2008, this time including an allegation that they had married under California law. The proposed Complaint in that matter, docketed as Case No. SACV08-01244 UA, contained the same claims against DOMA as the Complaint herein, and named as defendants the United States of America and “Does 1 through 1,000.” That Complaint was submitted with plaintiffs’ Requests to Proceed in Forma Pauperis, which The Honorable Alicemarie H. Stotler denied on November 26, 2008. That matter (Case No. SACV08-01244 UA) has now been closed.
Plaintiffs filed the present Complaint in the Superior Court of California for the County of Orange on December 29, 2008, naming as defendants the United States, the State of California, and “Does 1 through 1,000.” The Complaint filed in State court is identical to the Complaint submitted earlier in this Court,1 except for the addition of the State of California as a defendant and several sentences related to the new defendant. Plaintiffs filed applications for waivers of fees and costs in State court, and those applications were granted. See Attachment 1 hereto.2
Footnotes

1

Plaintiffs allege that they were married in California on July 10, 2008, see Complaint ¶ 10 -- that is, approximately four months

before the addition of Article 1, Section 7.5, to the State constitution, which declares that “[o]nly marriage between a man and a

woman is valid or recognized in California.” The California Supreme Court has rejected challenges to this new constitutional

provision, but has declared that same-sex marriages contracted before its enactment remain valid. See Strauss v. Horton, 207 P.3d

48 (Cal. May 26, 2009).

The United States, upon learning of the action in State court, filed a Notice of Removal in this Court under 28 U.S.C. § 1442(a)(1) (Doc. #1). The parties thereafter stipulated that defendants’ responses to the Complaint would be due on June 11, 2009 (Doc. #14), and the Court entered an Order pursuant to such stipulation on May 21, 2009 (Doc. # 20).
ARGUMENT
I. This Court Lacks Jurisdiction Over Plaintiffs’ Claims Against the United States Because the State Court Lacked Jurisdiction
After removal of a case from State court, the district court must determine the scope of its jurisdiction. See FBI v. Superior Court of Cal., 507 F. Supp. 2d 1082, 1090 (N.D. Cal. 2007). When a case is “removed from state court pursuant to [28 U.S.C.] § 1442, [the federal court’s] jurisdiction is derivative of the state court’s jurisdiction.” See In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997). In other words, a federal court, after removal, “has no more jurisdiction than the state court” did before removal. See Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1431 (9th Cir. 1984). Thus, “if the state court from which [a case] was removed lacked subject matter jurisdiction,” then the federal court will also lack jurisdiction, “even though the federal court would have had jurisdiction had the suit been brought there originally.” See FBI v. Superior Court of Cal., 507 F. Supp. 2d at 1090 (quoting Beeman v. Olson, 828 F.2d 620, 621 (9th Cir.1987)); see also Glass v. National R.R. Passenger Corp., 570 F. Supp. 2d 1180, 1183 (C.D. Cal. 2008) (“This Court agrees with the discussion and holding in FBI, 507 F. Supp. 2d at 1090-92, that the derivative jurisdiction doctrine is alive and well and applies to 28 U.S.C. § 1442 removals.”).3 2 The State court entered form orders on both applications (Attachment 1 hereto). On both orders, the court checked the box
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indicating “It is ordered that the application is granted in whole.” On the order regarding plaintiff Hammer’s request, another box was also checked -- contradictorily and apparently in error -- indicating that he would be required to pay certain fees.
In this case, the Superior Court of California for the County of Orange lacked jurisdiction over plaintiffs’ claims against the United States before removal. “[T]he United States has sovereign immunity and may only be sued where it has waived that immunity, subject to conditions on such waiver.” Glass, id. at 1183. Absent a waiver of immunity, the United States is immune from suit in State courts. See Powelson v. United States, 150 F.3d 1103, 1105 (9th Cir. 1998) (dismissing removed matter where “[t]he government [had] not waived its immunity from suit in state courts”); Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir. 1998) (“Without an express waiver of the IRS’s sovereign immunity as an agency of the United States, the state court lacked jurisdiction.”). Counsel for the United States is aware of no waiver of sovereign immunity that would have applied to plaintiffs’ claims against the United States in the Superior Court of California, and the Complaint in this action suggests no such waiver. Accordingly, the State court lacked jurisdiction over those claims, and this Court necessarily also lacks jurisdiction.
Furthermore, the procedural history of this case illustrates one salutary effect of the derivative jurisdiction doctrine. Plaintiffs initially filed their challenge against DOMA in this Court with a request to proceed in forma pauperis. When that request was denied, they added the State of California as a defendant and filed essentially the same action in State court approximately one month later, again with a request for waiver of fees and costs. The State court, unlike this Court, granted the request to file without payment of fees and costs. Plaintiffs have, therefore, engaged in a sort of “forum shopping” in an effort to avoid paying fees and costs. Moreover, plaintiffs’ conduct, if permitted, would essentially transfer certain of their expenses to the United States, which has borne the cost of filing a notice of removal in this Court and a notification of removal in State court. Failing to dismiss an action based on the derivative jurisdiction doctrine under these circumstances would encourage this kind of conduct.
II. Plaintiffs’ Claims and Allegations Against the United States Must Be Dismissed for Lack of Standing
For several reasons - including some of the same reasons relied on by this Court, and the Ninth Circuit, in holding that plaintiffs lacked standing in their first action - the plaintiffs are still without standing to bring their present claims against the United States. Specifically, because plaintiffs still do not “claim to have plans to seek recognition of their ... California marriage in another state,” they have not established an “imminent injury” due to Section 2. See Smelt I, 374 F. Supp. at 871. And because they still “do not suggest that they have applied for any federal benefits, much less been denied any at this point,” plaintiffs still lack standing to bring any claim against Section 3 of DOMA, the definitional provision. See Smelt II, 447 F.3d at 684. Further, even if plaintiffs otherwise had standing to challenge DOMA, they would lack standing to pursue certain aspects of the sweeping nationwide relief they seek against the United States, such as their request for “a permanent injunction compelling the Defendants to take all necessary acts to require the entire nation of the United States of America, [and] all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs.” See Complaint ¶ 8.
A. The Case or Controversy Requirement of Article III
The power of federal courts extends only to “Cases” and “Controversies,” see U.S. Const. art. III, § 2, and a litigant’s standing to sue is “an essential and unchanging part of the case-or-controversy requirement.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy this requirement, a plaintiff must demonstrate, as the “irreducible constitutional minimum” of standing to sue, an “injury in fact”, a “fairly traceable” causal connection between the injury and defendant’s conduct, and redressability. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03, 118 S. Ct. 1003, 140 L.Ed.2d 210 (1998); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 2309, 159 L.Ed.2d 98 (2004) (“The plaintiff must show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.”).
The injury needed for constitutional standing must, in addition, be “concrete,” “objective,” and “palpable,” not merely
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“abstract” or “conjectural” See Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S. Ct. 2222, 44 L.Ed.2d 600 (1975). The standing inquiry, moreover, must be “especially rigorous when,” as here, “reaching the merits of the dispute would force [a court] to decide whether an action taken by [another] branch[ ] of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20, 117 S. Ct. 2312, 138 L.Ed.2d 849 (1997). And if the plaintiff lacks standing, the Court lacks subject matter jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L.Ed.2d 603 (1990) (“standing ‘is perhaps the most important of [the jurisdictional] doctrines’ ”) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984)).
In addition to these constitutional mandates, the Courts adhere to certain “prudential” requirements of standing. These include, most notably for this case, “the general prohibition on a litigant’s raising another person’s legal rights [and] the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches.” Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984). “There are good and sufficient reasons for th[e] prudential limitation on standing when rights of third parties are implicated - the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them.” Duke Power Co. v. Carolina Envt’l Study Group, Inc., 438 U.S. 59, 80, 98 S. Ct. 2620, 57 L.Ed.2d 595 (1978). Additionally, this limitation ensures that a court does not “decide abstract questions of wide public significance even though other governmental institutions [including other courts] may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L.Ed.2d 343 (1975).
Under these principles, the plaintiffs in this action lack standing to challenge either section of DOMA under any theory, and to pursue relief of such breathtaking scope as they purport to seek in their Complaint.
B. Plaintiffs Lack Standing to Challenge DOMA’s Reservation of the States’ Authority Regarding Recognition of Same-Sex Marriages Performed in Other States
Section 2 of DOMA provides that one State need not recognize a same-sex marriage performed under the laws of another State; specifically, it states that “[n]o State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” 28 U.S.C. § 1738C. Thus, for example, if a same-sex couple were married under the laws of California and later moved to another State that does not allow or recognize same-sex marriages, DOMA would make clear that the second State would not be required, under federal constitutional or statutory law, to recognize their California marriage.
Obviously, as plaintiffs’ circumstances now stand, they cannot show that this provision of DOMA has any effect upon them. They complain that States other than California, exercising the choice preserved to them by Section 2 to withhold recognition of plaintiffs’ marriage, can thus deny them rights and benefits “automatically bestowed upon opposite-gender couples,” such as “decision-making authority for funeral arrangements” and “the right to bereavement leave in the event of a partner’s death; the presumption that both spouses are the legal parents of a child born during marriage; and, the right to community property,” among others. See Complaint ¶¶ 3, 4. These, of course, are rights and benefits that another State could deny to plaintiffs only if they were visitors, residents, and/or citizens within that State at an unknown time in the future when an occasion to assert such rights might arise. Plaintiffs allege, however, that they “reside in Orange County, California.” See id. ¶ 9. They allege no plans to move to another State, and, as in their first action challenging DOMA in this Court, they do not otherwise “claim to have plans to seek recognition of their ... California marriage in another state.” Smelt I, 374 F. Supp. at 871. Accordingly, as this Court held in the prior action, “[p]laintiffs have not established an imminent injury sufficient to confer standing to challenge section 2.” Id.
C. Plaintiffs Lack Standing to Challenge the Definitions of “Marriage” and “Spouse” Under Federal Law
In challenging Section 3 of DOMA, which defines the words “marriage” and “spouse” for purposes of federal law, plaintiffs allege that the refusal to recognize their marriage “results in a denial of... more than a thousand federal rights, benefits, and responsibilities,” such as “[t]he right to social security survivor benefits” and “the right to bereavement leave in the event of a
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partner’s death.” See Complaint ¶¶ 3-4.4 Plaintiffs do not allege, however, that they have actually been denied any federal marital benefits because of DOMA, or even that they have applied for benefits under any program to which this statute might apply. Thus, plaintiffs have not shown that they have suffered any concrete “injury in fact” due to the definitional provision of DOMA. See Steel Co., 523 U.S. at 102-03. 3 Although certain amendments to 28 U.S.C. § 1441 have eliminated the derivative jurisdiction doctrine in cases removed under that
section, the doctrine continues to operate in cases removed under 28 U.S.C. § 1442. See FBI v. Superior Court of Cal., 507 F. Supp. 2d at 1091-92; see also Palmer v. City Nat’l Bank, 498 F.3d 236, 247-48 (4th Cir. 2007) (discussing reasons why “Congress decided to retain the traditional rule that removal jurisdiction is derivative of state court jurisdiction prior to removal [under § 1442]”).
In fact, by failing to allege the denial of any federal benefits because of DOMA, plaintiffs have failed to correct one of the very defects that caused the Ninth Circuit to hold that they lacked standing in their first challenge to DOMA. In finding that plaintiffs lacked standing to challenge Section 3 of DOMA, the Court of Appeals relied on the fact that the definitional provision had never been applied to them under any federal statute:
DOMA itself simply does not injure [the plaintiffs] or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough. In short, they have not spelled out a legally protected interest, much less one that was injured in a concrete and particularized way.
447 F.3d at 684 (emphasis added) (citations omitted). Except for the reference to being “married under the law of some state,” all of these statements remain true. Plaintiffs have still “not suggest[ed] that they have applied for any federal benefits, much less been denied any at this point.” Hence, having suffered no concrete injury attributable to Section 3, either, plaintiffs are without standing to challenge its constitutionality.
D. Plaintiffs Cannot Establish Standing to Seek Certain Sweeping Relief Requested in Their Complaint
Even if plaintiffs otherwise had standing to challenge either Section 2 or Section 3 of DOMA, plaintiffs would lack standing to pursue the expansive relief alluded to in their Complaint. Specifically: • Plaintiffs purport to seek “a permanent injunction compelling the Defendants to take all necessary acts to require the entire nation of the United States of America, [and] all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs.” See Complaint ¶ 8 (emphasis added).
• And plaintiffs request “declaratory judgment establishing any law that restricts Plaintiffs’ rights or distinguishes Plaintiffs’ rights in any way from any opposite gender married couple to be unconstitutional, under the United States Constitution.” Id. (emphasis added).
Although plaintiffs do not include requests of this nature among their prayers for relief, the above-quoted paragraph in the Complaint explicitly “ask[s] for” and “seek[s]” this relief. Id.
Plaintiffs lack standing to pursue these requests, under both constitutional and prudential requirements of standing. From a constitutional standpoint, plaintiffs have not attempted to allege an “injury in fact” - or any specific effect at all upon them due to “any” law other than DOMA. And since they have not even identified any particular “conduct of which [they] complain[ ],” other than DOMA, plaintiffs would necessarily be unable to show how any such laws have “caused [them] to suffer an ‘injury in fact’ that a favorable judgment will redress.” See Elk Grove Unified School Dist., 542 U.S. at 12. Further, judgment against the present defendants - the United States government and one State - could not possibly redress every alleged injury to the plaintiffs from “any distinction in the law” throughout “the entire nation of the United States of America, all of its territories and jurisdictions.” See Complaint ¶ 8.
These aspects of the Complaint also seek to “rely on the rights or interests of third parties,” in violation of the prudential
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requirements of standing. See Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987). Only those who suffer cognizable injury due to laws in other “territories and jurisdictions” have standing to challenge those laws. See Complaint ¶ 8. As the Supreme Court has held, “even if a governmental actor is discriminating on the basis of [a suspect classification], the resulting injury ‘accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.’ ” United States v. Hays, 515 U.S. 737, 743-44, 115 S. Ct. 2431, 132 L.Ed.2d 635 (1995) (quoting Allen, 468 U.S. at 755). This rule “applies with as much force in the equal protection context as in any other.” Hays, id. at 743.
III. DOMA Is a Valid Exercise of Congress’s Power under the Full Faith and Credit Clause
Even if the Court had subject matter jurisdiction to hear plaintiffs’ claims, it would nevertheless have to dismiss them on the merits. Plaintiffs assert that Section 2 of DOMA - which preserves a State’s prerogative to decline to give “effect” to another State’s laws respecting same-sex marriage - violates the Full Faith and Credit Clause of the Constitution. See Complaint ¶ 28. This challenge fails as a matter of law.
Section 2 is fully consistent with the Full Faith and Credit Clause, for two important reasons. First, the principle of according “Full Faith and Credit” has never been construed to require one State to give absolute deference to another State’s laws in all circumstances. Rather, this provision has long been understood to leave room for the application of traditional principles of conflict of laws, including the concept that each State retains the authority to decline to apply another State’s law when it conflicts with its own legitimate public policies. Section 2 of DOMA easily fits within this principle, which has long been applied to recognize the power of each State to apply its own licensing standards - including, specifically, for marriage licenses - when they conflict with those of another State. Second, in any event, plaintiffs completely ignore the second sentence of the Full Faith and Clause, which expressly empowers Congress to prescribe “the Effect” of one State’s laws in another State, and clearly condones the exercise of that power in DOMA. Under any conceivable construction of this “effects” provision, Congress clearly has the power to recognize the authority of each State to give primacy to its own standards for marriage licensing and to decline to give effect to the conflicting standards of another.
A. Section 2 is Consistent With Common Law Conflicts Principles
The principle of “Full Faith and Credit” has never been construed to require the States literally to give effect, in all circumstances, to the statutes or judgments of other States. Indeed, “[a] rigid and literal enforcement of the full faith and credit clause, without regard to the statute of the forum, would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.” Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532, 547, 55 S. Ct. 518, 79 L. Ed. 1044 (1935).
Consistent with this principle, the Supreme Court has indicated that the Framers of the Constitution had an “expectation” that the Full Faith and Credit Clause “would be interpreted against the background of principles developed in international conflicts law.” Sun Oil Co. v. Wortman, 486 U.S. 717, 723 & n.1, 108 S. Ct. 2117, 100 L.Ed.2d 743 (1988). And, as the Court has repeatedly acknowledged, longstanding principles of conflicts of law do “not require a State to apply another State’s law in violation of its own legitimate public policy.” See, e.g., Nevada v. Hall, 440 U.S. 410, 422, 99 S. Ct. 1182, 59 L.Ed.2d 416 (1979); see also Williams v. North Carolina, 317 U.S. 287, 296, 63 S. Ct. 207, 87 L. Ed. 279 (1942) (“Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state.”). Under this longstanding public policy doctrine, out-of-state statutes or acts that are contrary to the forum State’s policy need not be followed under the Full Faith and Credit Clause. See, e.g., Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 501, 59 S. Ct. 629, 83 L. Ed. 940 (1939) (holding that California courts need not apply Massachusetts law of workers compensation to Massachusetts employee of Massachusetts employer, where that law was contrary to California’s “policy to provide compensation for employees injured in their employment within the state”); see also Hilton v. Guyot, 159 U.S. 113, 167, 16 S. Ct. 139, 40 L. Ed. 95 (1895) (“A judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law.”); Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589, 10 L. Ed. 274 (1839) (noting the longstanding principle of conflicts that the laws of one country “will, by the comity of nations, be recognised and executed in another ... provided that law was not
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repugnant to the laws or policy of their own country”) (emphasis added).
The courts have followed this principle, moreover, in relation to the validity of marriages performed in other States. Both the First and Second Restatements of Conflict of Laws recognize that State courts may refuse to give effect to a marriage, or to certain incidents of a marriage, that contravene the forum State’s policy. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 284.5 And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson’s Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”). 4 All of the other examples given in the Complaint are products of State law, to the extent they are supported by law at all:
“decision-making authority for funeral arrangements and disposition of the body ... the presumption that both spouses are the legal parents of a child born during marriage; and, the right to community property, and a share of separate property, upon the death of a partner who dies intestate.” See Complaint ¶ 4.
Accordingly, Section 2 of DOMA hews to long-established principles in relation to the recognition of marriages performed in other States, and ensures that States may continue to rely on their own public policies to reject (or accept) requests to recognize same-sex marriages. The fact that States have long had the authority to decline to give effect to marriages performed in other States based on the forum State’s public policy strongly supports the constitutionality of Congress’s exercise of its authority in DOMA. Surely the Full Faith and Credit Clause cannot be read, in light of these established principles, to preclude a State from applying its own definition of marriage in situations involving same-sex couples, married elsewhere, who are domiciled within its own borders. That Clause clearly does not mandate such interference with “long established and still subsisting choice-of-law practices.” Sun Oil Co., 486 U.S. at 728-29.
B. Section 2 Was Enacted Under Congress’s Authority to Prescribe to Prescribe the “Effect” of One State’s Acts in Other States
The constitutionality of Section 2 of DOMA is further confirmed by the second sentence of the Full Faith and Credit Clause, which expressly empowers Congress to prescribe “the Effect” to be accorded to the laws of a sister State. See U.S. Const. art. IV, § 1, cl. 2. Although the broad contours of this provision have not been conclusively established, the power exercised by Congress in enacting DOMA clearly conforms to any conceivable construction of the effects provision.
First, there is ample support in both history and case law for according plenary power to Congress under the effects provision. When the Framers considered the Full Faith and Credit Clause, they explained that it was designed to make up for the inadequacies of a predecessor provision in the Articles of Confederation - a provision that called for according full faith and credit to a sister State’s laws, but that recognized no legislative power to prescribe the “effect” of such laws. In the Framers’ view, the provision in the Articles of Confederation was “deficien[t],” because it did not “declare what was to be the effect of a judgment obtained in one state in another state.” McElmoyle ex rel. Bailey v. Cohen, 38 U.S. (13 Pet.) 312, 325-26, 10 L. Ed. 177 (1839) (Mem) (emphasis added). In the absence of any provision as to such “effect,” the Framers viewed the meaning of “full faith and credit” as “extremely indeterminate,” and “of little importance.”6 5 Among the “incidents” of marriage mentioned in the Restatement (Second) of Conflict of Laws are “that the spouses may lawfully
cohabit as man and wife ... the marital property interests which each spouse may have in the other’s assets ... the forced share or intestate share which the surviving spouse has in the estate of the deceased spouse [and] that a party to the marriage is the ‘spouse’ of the other ... within the meaning of these terms when used in a will, trust or other instrument.” See Restatement (Second) of Conflict of Laws § 284 cmt. a.
As the Supreme Court explained in McElmoyle, this historical record accords limited significance to the first sentence of the Full Faith and Credit Clause, and plenary power to Congress to prescribe the substantive effects of a sister State’s laws.
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Specifically, the first sentence merely provides that the judgments of one State “are only evidence in a sister state that the subject matter of the suit has become a debt of record.” McElmoyle, id. at 325 (emphasis added). It “does not declare what was to be the effect of a judgment obtained in one state in another state,” id. (emphasis added); the prescription of any substantive effect of a sister State’s laws is left to Congress under the second sentence - the effects provision.
This same construction was embraced by the Court in Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L. Ed. 411 (1813). At issue in Mills was the Full Faith and Credit statute of 1790, now codified in substantially similar terms at 28 U.S.C. § 1738, which provided that one State’s judgment would have the same effect in other States as it would have in the rendering State. In rejecting a reading of the statute that would treat “judgments of the state Courts ... as prima facie evidence only,” the Court noted that “the constitution contemplated a power in congress to give a conclusive effect to such judgments.” Id. at 485 (emphasis added). As in McElmoyle, then, the Mills decision reads the effects provision - not the first sentence of the Full Faith and Credit Clause - as conferring on Congress the broad power “to give a conclusive effect” to the laws of another State.
Under this view, Congress obviously acted within its plenary effects power in enacting Section 2 of DOMA. If the Constitution itself does not declare “the effect” of the law of “one state in another state,” McElmoyle, 38 U.S. (13 Pet.) at 325, but instead leaves that “power in congress,” Mills, 11 U.S. (7 Cranch) at 485, then Congress clearly had the authority in DOMA to declare that no State is “required to give effect” to the same-sex marriage laws of other States. 28 U.S.C. § 1738C.
Moreover, the Court need not embrace this plenary reading of Congress’s effects power in order to sustain Section 2 of DOMA. Whatever the breadth of Congress’s power under the Full Faith and Credit Clause, it clearly encompasses the authority to confirm the applicability of one of the longstanding, generally applicable principles of conflicts law that formed the background to the Clause. See Sun Oil Co., 486 U.S. at 723 & n.1. As explained in detail above, one such principle was the public policy doctrine, which has long recognized the sovereign authority of the States to decline to give effect to the laws of a sister State at variance with their own legitimate public policy. Section 2 of DOMA merely confirms the specific applicability of that longstanding principle in the context of laws regarding same-sex marriage.
This exercise of Congress’s effects power easily fits within any conceivable construction of this provision. As the Supreme Court recognized in Sun Oil Co., the conflicts law that formed the “background” of the Full Faith and Credit Clause was common law, subject to further “development.” Id. In authorizing Congress to declare the “effect” of one State’s laws in another State, the Constitution empowers Congress, at the very least, to codify the applicability of a longstanding common law principle in a context where State public policies are poised to clash. That is all that Congress has done in enacting Section 2 of DOMA, and its exercise of that authority must be upheld under any reasonable interpretation of its power.
IV. DOMA Cannot Be Said to Violate an Asserted “Right to Travel”
In addition to their Full Faith and Credit Clause claim, plaintiffs contend that DOMA violates an asserted “right to travel.” See Complaint ¶ 17. Although the complaint does not specify, presumably plaintiffs are referring to the freedom to travel from one State to another, long protected by the Constitution as a basic right. See Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). This claim also fails.
To begin with, plaintiffs lack standing to raise this claim. They have failed to allege any plans to travel to, reside in, or become citizens of any State other than California. They thus do not and cannot allege that DOMA has actually interfered with such travel. See Whitmore, 495 U.S. at 155, 157, 158 (injury alleged cannot be “conjectural or hypothetical,” “speculative,” or “abstract,” but must be “certainly impending”).
In all events, DOMA simply does not curtail anyone’s right to travel. It merely permits each State to follow its own policy with respect to marriage, and defines that term for purposes of federal statutes. Thus, DOMA does not affect “the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, [or], for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 143 L.Ed.2d 689 (1999) (noting that “right to travel” cases embrace these three components).
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Furthermore, given that DOMA merely codifies long-standing principles of conflict of laws under Congress’s express authority to prescribe the effect of one State’s acts in the other States, it cannot violate any implied constitutional “right to travel.” Requiring adherence to one State’s codified social policies by every other State, in the name of a right to travel, would eliminate conflict-of-laws principles in this context and “would lead to the absurd result that, wherever [a] conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.” Alaska Packers Ass’n, 294 U.S. at 547; see Ellis v. Anderson, 901 S.W. 2d 46, 47-48 (Ky. Ct. App. 1995) (notwithstanding right to travel, “states have considerable power to adopt an appropriate conflict of laws doctrine in a situation touching more than one state”); Miller v. Stauffer Chem. Co., 581 P.2d 345, 348-49 (Idaho 1978) (same). Put differently, the plaintiffs’ theory of the to travel would invalidate the Constitution’s express grant of authority to Congress to prescribe “the Effect” to be accorded to the laws of another State. As the Supreme Court has held, “Full Faith and Credit does not ... enable one state to legislate for the other or to project its laws across state lines ....” Nevada v. Hall, 440 U.S. at 423-24. The Full Faith and Credit Clause expressly preserves this State sovereign prerogative, and surely no implicit “right to travel” can be read to take it away.
V. DOMA Is Consistent with Equal Protection and Due Process Principles
Plaintiffs further allege that DOMA violates their rights under the Due Process Clause of the Fifth Amendment, including its equal protection component. DOMA, however, merely preserves for each State the authority to follow its own law and policy with respect to same-sex marriage for purposes of State law. And it maintains the status quo of federal policy, preserving a longstanding federal policy of promoting traditional marriages, by clarifying that the terms “marriage” and “spouse,” for purposes of federal law, refer to marriage between a man and a woman, and do not encompass relationships of any other kind within their ambit. Thus, because DOMA does not make a suspect classification or implicate a right that has been recognized as fundamental, it is necessarily subject to rational-basis scrutiny, see National Ass’n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000), which it satisfies.
Congress makes a wide array of federal financial and other benefits available to men and women united in marriage - to the exclusion of all other human relationships (save for that of parent and minor child), not just same-sex marriage. In enacting DOMA, Congress (1) recognized the right of some States to expand the traditional understanding of marriage while, at the same time, it (2) protected the rights of other States to adhere to their traditional understandings of the institution, and (3) maintained the longstanding federal policy of affording benefits to the traditional, and universally recognized, version of marriage. This measured response to society’s evolving understandings of marriage is entirely rational. Indeed, under rational basis scrutiny, Congress is entitled to respond to new social phenomena one step at a time, and to adjust national policy incrementally. DOMA reflects just such a response. It adopts on the national level, and permits on the state level, a wait-and-see approach to new forms of marriage. DOMA thus maximizes democratic flexibility under our federalist scheme, by simply preventing some States from requiring other States and the federal government to grant benefits to forms of marriages that, under their own constitutions, state or federal governments are not obligated to recognize. Because it is rationally related to legitimate governmental interests, plaintiffs cannot overcome the “presumption of constitutionality” that DOMA, like all federal statutes, enjoys. See, e.g., Califano v. Gautier Torres, 435 U.S. 1, 5, 98 S. Ct. 906, 55 L.Ed.2d 65 (1978).
A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA
DOMA codifies, for purposes of federal statutes, regulations, and rulings, the longstanding, traditional definition of marriage as “a legal union between one man and one woman as husband and wife,” see 1 U.S.C. § 7, and preserves to each State the ability to retain that definition as its policy if the State so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C.7 As far as counsel for the defendants are aware, every court to address a federal constitutional challenge to this definition of marriage has rejected the challenge. See, e.g., Citizens for Equal Protection v. Bruning, 455 F.3d 859, 864-69 (8th Cir. 2006); Lofton v. Secretary of Dep’t of Children & Family Servs., 358 F.3d 804, 811-27 (11th Cir. 2004); Adams v. Howerton, 673 F.2d 1036, 1041-43 (9th Cir. 1982); Dean v. District of Columbia, 653 A.2d 307, 331-33, 362-64 (D.C. 1995); Baehr v. Lewin, 852 P.2d 44, 55-57 (Haw. 1993); Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (mem).
6 See The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961) (“The meaning of the [the full faith and credit clause in the Articles] is extremely indeterminate, and can be of little importance under any interpretation which it will bear.”).
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Indeed, a number of federal courts have specifically addressed the constitutionality of one or both sections of DOMA, and have expressly upheld them against all constitutional challenges. See Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (Section 3), vacated on other grounds, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (Section 2 and Section 3); In re Kandu, 315 B.R. 123 (Bankr. W. D. Wash. 2004) (Section 3), appeal dismissed Kandu v. United States Trustee, Case No. 3:04-cv-05544-FDB (W.D. Wash.) [hereinafter Kandu]; see also Bishop v. Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) (rejecting certain constitutional challenges but deferring others pending further development). This Court should do likewise here.
Romer v. Evans, which was decided before all of these cases, does not compel a different conclusion. 517 U.S. 620, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996). In Romer, the Supreme Court applied rational-basis review to invalidate a State constitutional amendment of “unprecedented” breadth that barred homosexuals from securing any protection under State or local anti-discrimination statutes or ordinances. Id. at 633. The amendment bore no rational relationship to any legitimate government interest, raising an “inevitable inference” that it was born solely “of animosity toward [homosexuals].” Id. at 634-35.
For purposes of Fifth Amendment analysis, DOMA cannot be equated with the Colorado amendment struck down in Romer. “DOMA is not ... exceptional and unduly broad.” Kandu, 315 B.R. at 147-48 (distinguishing DOMA and the amendment in Romer on that basis); cf. Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App. 2003) (rejecting challenge to State definition of marriage). Codifying the traditional definition of marriage, moreover, is by no means “unprecedented.” See Kandu, 315 B.R. at 148 (“DOMA simply codified that definition of marriage historically understood by society”). And, unlike the Colorado amendment struck down in Romer, DOMA is rationally related to legitimate government interests and cannot fairly be described as “born of animosity toward the class of persons affected.” Romer, 517 U.S. at 634. DOMA simply preserves longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage. Under our federalist system, preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest. Moreover, because DOMA protected “the ability of elected officials to decide matters related to homosexuality,” including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals. See H.R. Rep. No. 104-664, at 17, reprinted in 1996 U.S.C.C.A.N. at 2921.
Nor does the Supreme Court’s decision in Lawrence v. Texas overrule or otherwise undermine the precedents, cited above, that uphold DOMA. In Lawrence, the Supreme Court held that the government cannot criminalize private, consensual, adult sodomy. At the same time, the Court unequivocally noted that the case before it did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L.Ed.2d 508 (2003) (emphasis added). Thus, in light of this limiting language, Lawrence simply does not address the affirmative right to receive official and public recognition of a same-sex relationship. Because Lawrence declined to address any question regarding marriage, it does not disturb prior precedents in which the courts have declined to recognize a federal constitutional right to same-sex marriage.
B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental
Even in the absence of the foregoing precedents, plaintiffs’ equal protection and substantive due process claims still would fail as a matter of law. Most such claims are subject to “rational basis” review, under which the challenged statute will be upheld “as long as it bears a rational relation to a legitimate state interest.” See Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (equal protection); accord Richardson v. City & County of Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997) (due process). Only if the statute “makes a suspect classification or implicates a fundamental right” will it be subjected to a higher standard of review. National Ass’n for Advancement of Psychoanalysis, 228 F.3d at 1049. In this case, because DOMA does not impinge upon any fundamental right, it is not entitled to heightened scrutiny.
A fundamental constitutional right protected by the Due Process Clause is one that is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702,
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720-21, 117 S. Ct. 2258, 138 L.Ed.2d 772 (1997). The Supreme Court has mandated extreme caution in elevating individual liberty interests, no matter how genuinely and profoundly important they may be to the parties asserting them, to the status of fundamental constitutional rights. As the Court has explained:
By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.
Glucksberg, id. at 720 (citations and internal quotation marks omitted); see Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1250 (11th Cir. 2004) (observing that conferring constitutional status on an asserted right prevents future revision through democratic process). Accordingly, only a “small number” of substantive rights qualify under the Fifth Amendment as “fundamental.” United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998).
A court must reach a “careful description” of the alleged right before determining whether it is fundamental. Glucksberg, 521 U.S. at 721. Most importantly, the asserted right must be defined with specificity, rather than in general terms. Only when this specific, “careful description” is reached can a court proceed to determine whether the asserted right is fundamental.8
7 Portions of plaintiffs’ Complaint confuse the United States Code citations for the two substantive sections of DOMA. As stated correctly in paragraphs 15 and 16 of the Complaint, Section 2 of DOMA, which provides that a State is not required to give effect to a same-sex marriage from another State, is codified at 28 U.S.C. § 1738C, and Section 3, which defines “marriage” and “spouse” for purposes of federal law (erroneously called the “Federal Definition of Marriage Act” in paragraph 15), is codified at 1 U.S.C. § 7. Most of the remainder of the Complaint, however, reverses those citations, referring to 28 U.S.C. § 1738C as the “Federal Definition of Marriage Act” and to 1 U.S.C. § 7 as the “Federal Defense of Marriage Act.”
Here, the asserted right on which plaintiffs’ claims rest in this case is not a right to marry. DOMA does not prohibit gay and lesbian couples from marrying. It does not prohibit the States from acknowledging gay marriages. And it does not in any way penalize those couples, or States, that do so. Instead, plaintiffs’ claims rest on an asserted right to receive federal benefits on the basis of a relationship other than the sole relationship on which Congress (and many States) have decided to base eligibility for such benefits. Thus, properly characterized, the right asserted here is far from fundamental, as there is no constitutional right to State or federal financial benefits. See, e.g., Lavine v. Milne, 424 U.S. 577, 584 n.9, 96 S. Ct. 1010, 47 L.Ed.2d 249 (1976) ( “Welfare benefits are not a fundamental right, and neither the State nor Federal Government is under any sort of constitutional obligation to guarantee minimum levels of support.”) (citing Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L.Ed.2d 491 (1970)).
Even viewing the right asserted here as the right of gay and lesbian couples to marry, DOMA does not directly or substantially interfere with the ability of anyone, including homosexuals, to marry the individual of his or her choice. Instead, Section 2 of DOMA simply underscores that, notwithstanding the evolution in some States’ legal understanding of marriage, the remaining States may continue to follow their own policy so far as recognition of same-sex marriage is concerned, a prerogative they already retained, as discussed above, under the conflict-of-laws principles that underlie the Full Faith and Credit Clause. Hence, under DOMA, gay and lesbian couples suffer no greater interference with their ability to obtain recognition of their marriages, either in the States where they were wed, or elsewhere.
Likewise, Section 3 of DOMA merely clarifies that federal policy is to make certain benefits available only to those persons united in heterosexual marriage, as opposed to any other possible relationship defined by law, family, or affection. As a result, gay and lesbian individuals who unite in matrimony are denied no federal benefits to which they were entitled prior to their marriage; they remain eligible for every benefit they enjoyed beforehand. DOMA simply provides, in effect, that as a result of their same-sex marriage they will not become eligible for the set of benefits that Congress has reserved exclusively to those who are related by the bonds of heterosexual marriage.
In short, then, the failure in this manner to recognize a certain subset of marriages that are recognized by a certain subset of States cannot be taken as an infringement on plaintiffs’ rights, even if same-sex marriage were accepted as a fundamental right under the Constitution. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L.Ed.2d 249 (1989) (Due Process Clause “generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual”);
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Lyng v. Automobile Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L.Ed.2d 380 (1987) (holding that a decision “not to subsidize the exercise of a fundamental right does not infringe the right.”); Harris v. McRae, 448 U.S. 297, 317-18, 100 S. Ct. 2671, 65 L.Ed.2d 784 (1980) (“Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such [government assistance] as may be necessary to realize all the advantages of that freedom.”); see also Rust v. Sullivan, 500 U.S. 173, 201, 111 S. Ct. 1759, 114 L.Ed.2d 233 (1991); Webster v. Reproductive Health Servs., 492 U.S. 490, 507, 109 S. Ct. 3040, 106 L.Ed.2d 410 (1989).
Finally, regardless of whether same-sex marriage is appropriate policy, under current legal precedent there is no constitutional right to it, and that precedent is binding on these parties and this Court. While the Supreme Court has held that the right to marry is “fundamental,” Zablocki v. Redhail, 434 U.S. 374, 383-87, 98 S. Ct. 673, 54 L.Ed.2d 618 (1978), that right has not been held to encompass the right to marry someone of the same sex. To the contrary, in Baker v. Nelson, the Supreme Court dismissed a claim that the Constitution provides a right to same-sex marriage for lack of a “substantial federal question.” 409 U.S. 810, 93 S. Ct. 37, 34 L.Ed.2d 65 (1972) (Mem). In Baker, the Minnesota Supreme Court had rejected the contention that a State statute limiting marriage to one man and one woman violated federal due process and equal protection principles. The court found no “fundamental right” to same-sex marriage, 191 N.W.2d at 186-87, and concluded that the traditional definition of marriage effects no “invidious discrimination,” and that the definition easily withstood rational-basis review. Id. at 187.
Invoking the Supreme Court’s then-mandatory appellate jurisdiction, see 28 U.S.C. § 1257(2) (repealed 1988), a same-sex couple sought review of those rulings. See Jurisdictional Statement, Baker v. Nelson, No. 71-1027, at 3 (Attachment 2 hereto)9 (questions presented include whether denial of same-sex marriage “deprives appellants of their liberty to marry ... without due process of law under the Fourteenth Amendment” and “violates their rights under the equal protection clause ...”).10 Upon review, the Supreme Court dismissed the appeal “for want of a substantial federal question.” 409 U.S. at 810.
8 For example, in Washington v. Glucksberg, the right was not - properly characterized - a “right to die,” but rather a “right to commit suicide.” 521 U.S. at 722-23. Similarly, in Reno v. Flores, in which juvenile aliens challenged their detention by the government, the Supreme Court rejected an invitation to characterize the asserted right as “freedom from physical restraint,” and instead characterized it as “the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution.” 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L.Ed.2d 1 (1993).

9

Submission of the two attachments to this memorandum does not convert the United States’ motion to dismiss into a motion for

summary judgment. See, e.g., Papasan v. Allain, 478 U.S. 265, 268 n.1, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986) (court may

consider matters of public record in adjudicating motion to dismiss); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) (“In

deciding whether to dismiss a claim under [Rule] 12(b)(6), a court may look beyond the plaintiff’s complaint to matters of public

record.”).

The decision in Baker has precedential effect and is binding here. As the Supreme Court has explained, a dismissal for lack of a substantial federal question is a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S. Ct. 2281, 45 L.Ed.2d 223 (1975). Referring to an earlier appeal that had been dismissed for lack of a substantial federal question, the Court said in Hicks:
That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our [mandatory] appellate jurisdiction ... and we had no discretion to refuse adjudication of the case on its merits .... We are not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one.
Id. (emphasis added). As the Eighth Circuit has observed, therefore, the Supreme Court’s dismissal in Baker is “binding on the lower federal courts.” McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam); accord Adams, 673 F.2d at 1039 n.2 (acknowledging that Supreme Court’s dismissal in Baker “operate[d] as a decision on the merits”). Moreover, “dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement
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of jurisdiction.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 53 L.Ed.2d 199 (1977).
Accordingly, Baker stands for the proposition that equal protection principles do not bar the States from limiting marriage to one man and one woman. This precedent is binding on the federal courts. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); see also Agostini v. Felton, 521 U.S. 203, 237-38, 117 S. Ct. 1997, 138 L.Ed.2d 391 (1997) (“The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent.”); Wilson, 354 F. Supp. 2d at 1305 (“The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today.”). It follows, therefore, that the federal government may incorporate the traditional opposite-sex definition of marriage for purposes of federal statutes, and (in exercise of its express authority under the Full Faith and Credit Clause) may permit the States to retain this definition as well.
In short, therefore, DOMA, understood for what it actually does, infringes on no one’s rights, and in all events it infringes on no right that has been constitutionally protected as fundamental, so as to invite heightened scrutiny.
C. DOMA Does Not Rest on Any Suspect Classification
Plaintiffs also maintain that DOMA discriminates on the basis of sexual orientation, in violation of their right to the equal protection of the law, see Complaint, ¶ 20, but DOMA is not subject to heightened scrutiny on that basis. As an initial matter, plaintiffs misperceive the nature of the line that Congress has drawn. DOMA does not discriminate against homosexuals in the provision of federal benefits. To the contrary, discrimination on the basis of sexual orientation is prohibited in federal employment and in a wide array of federal benefits programs by law, regulation, and Executive order. See, e.g., 13 C.F.R. § 127.303(b)(3) (small business assistance); 31 C.F.R. § 0.214(a) (prohibiting discrimination by Department of the Treasury employees against other employees, applicants for employment, or “person[s] dealing with the Department on official business”); Exec. Order No. 13,160, § 1-102, 65 Fed. Reg. 39,773 (June 23, 2000), reprinted in 42 U.S.C. § 2000d note (nondiscrimination in federally conducted education and training programs); Exec. Order No. 11,478, § 1, 34 Fed. Reg. 12,985 (Aug. 8, 1969), reprinted as amended in 42 U.S.C.A. § 2000e note (equal employment opportunity in federal government). Within the context of such programs, Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage. See infra at 33-36. Section 2 merely reserves to the States the prerogative to make the same choice.
Even if viewed as establishing a classification on the basis of sexual orientation, DOMA still could not be subjected to heightened scrutiny on the theory that it draws any suspect classification; the Ninth Circuit has concluded that sexual orientation does not constitute a suspect classification. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (rejecting challenge to policy of conducting expanded investigations of homosexual applicants for security clearances). That holding is of course binding here.
DOMA also does not discriminate on the basis of sex. See Complaint ¶ 19. To begin with, the effect of DOMA - to the extent the statute has any direct effect on a person - is the same on men and women. See Wilson, 354 F. Supp. 2d at 1307-08 (“DOMA does not discriminate on the basis of sex because it treats women and men equally.”). Thus, as the court noted in Kandu, in holding that DOMA does not discriminate on the basis of sex, “Women, as members of one class, are not being treated differently from men, as members of a different class.” Kandu, 315 B.R. at 143.
Loving v. Virginia is not to the contrary. There the Supreme Court rejected a contention that the assertedly “equal application” of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little difficulty concluding that the statute, which applied only to “interracial marriages involving white persons,” was “designed to maintain White Supremacy” and therefore unconstitutional. Id. at 11. No comparable purpose is present here, however, for DOMA does not seek in any way to advance the “supremacy” of men over women, or of women over men. Thus DOMA cannot be “traced to a ... purpose” to discriminate against either men or women. Personnel Adm’r v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979). In upholding the traditional
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definition of marriage, numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Kandu, 315 B.R. at 144 (“[T]he Supreme Court did not hold [in Lawrence] that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis.”); Baker v. Vermont, 744 A.2d 864, 880 n. 13 (Vt. 1999) (rejecting claim that “defining marriage as the union of one man and one woman discriminates on the basis of sex”); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) (“It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples.”).
D. DOMA Satisfies Rational-Basis Review
Because DOMA neither burdens fundamental rights nor allocates federal benefits on the basis of a suspect classification, it is necessarily subject only to rational-basis review. See, e.g., Glucksberg, 521 U.S. at 728. The Supreme Court has described the elements of rational-basis review in Heller v. Doe: [R]ational-basis review ... is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. [A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot [be found unconstitutional] if there is a rational relationship between the [challenged government action] and some legitimate governmental purpose.... [A] classification must be upheld ... if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.
[The government], moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. 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.
509 U.S. 312, 319-20, 113 S. Ct. 2637, 125 L.Ed.2d 257 (1993) (emphasis added) (citations and internal quotation marks omitted); see Dittman v. California, 191 F.3d 1020, 1031 (9th Cir. 1999) (“It is ... irrelevant for constitutional purposes whether, at the time the legislature acted, it articulated the ‘conceivable basis’ for the legislation.”) (emphasis added). As the Ninth Circuit has held, a court applying rational-basis review “may even hypothesize the motivations of the state legislature to find a legitimate objective promoted by the provision under attack.” Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation marks omitted). Obviously, this imposes a “heavy burden” on the plaintiffs, Dittman, 191 F.3d at 1031; rational-basis analysis is, in short, “a paradigm of judicial restraint.” FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993); see Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (rational-basis standard is “highly deferential”).
DOMA withstands review under this highly deferential standard. In light of society’s still-evolving understanding of marriage, the statute adopted what amounted to a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each State to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other States to subsidize a form of marriage their own States do not recognize. This policy of neutrality maximizes state autonomy and democratic self-governance in an area of traditional state concern, and preserves scarce government resources. It is thus entirely rational. Plaintiffs’ contrary claim rests, at bottom, on an improper effort at constitutional bootstrapping: the fact that some States have decided to expand the definition of marriage cannot create an equal protection-based duty in other States, or the federal government, to grant such recognition.
As Congress explained when enacting DOMA, “[t]here are relations of deep, abiding love” between persons of all kinds, “brothers and sisters, parents and children, grandparents and grandchildren,” that “cannot be diminished as loves just] because they are not ... expressed in marriage.” H.R. Rep. No. 104-664, at 13, reprinted in 1996 U.S.C.C.A.N. at 2917 (internal quotation marks omitted). But the sole relationship on the basis of which Congress and many States have long made certain benefits available is the legally recognized union of marriage between a man and a woman. In recent years, of course, some States have extended the same legal recognition, protections and benefits to same-sex marriages. Such recognitions,
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however, do not compel Congress to extend to this newly recognized form of marriage the same federal benefits it chose to afford to the centuries-old institution of heterosexual marriage. Instead, under rational basis scrutiny, Congress is entitled to adopt a cautious, wait-and-see approach to newer types of marriage and to society’s still-evolving understandings of the institution. Legislatures may “refin[e] their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.” Massachusetts v. EPA, 549 U.S. 497, 524, 127 S. Ct. 1438, 167 L.Ed.2d 248 (2007); see SEC v. Chenery Corp., 332 U.S. 194, 202, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947) (“Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations.”); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir.1998) (“[R]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”); Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (“[A] statute or regulation is not lacking in a rational basis simply because it addresses a broader problem in small or incremental stages. It is only necessary that there be some rational relation between the method chosen and the intended result.”) (citation omitted).
Section 3 of DOMA reflects just such an approach: it maximizes democratic flexibility and self-governance under our federalist system, by adopting a policy of federal neutrality with respect to a matter that is primarily the concern of state government. Because all 50 States recognize hetero-sexual marriage, it was reasonable and rational for Congress to maintain its longstanding policy of fostering this traditional and universally-recognized form of marriage. At the same time, because Congress recognized both the freedom of States to expand the traditional definition, and the freedom of other States to decline to recognize this newer form of marriage, a policy of neutrality dictated that Congress not extend federal benefits to new forms of marriage recognized by some States. Given the strength of competing convictions on this still-evolving issue, Congress could reasonably decide that federal benefits funded by taxpayers throughout the nation should not be used to foster a form of marriage that only some States recognize, and that other States do not. See H.R. Rep. No. 104-664, at 16, reprinted in 1996 U.S.C.C.A.N. at 2920 (DOMA advances government’s interest in “protecting state sovereignty and democratic self-governance.”); The White House, Office of Communications, President on Signing Same Gender Marriage Ban, 1996 WL 533626 (Sept. 22, 1996) (“The Act confirms the right of each state to determine its own policy with respect to same gender marriage ....”).
Although the Constitution does not require Congress to be so solicitous of divergent state policies and prerogatives, equal protection principles do not forbid such solicitude as irrational, particularly on matters of evolving and contentious social policy. See Mixon v. Ohio, 193 F.3d 389, 403 (6th Cir. 1999) (“State legislatures need the freedom to experiment with different techniques to advance public education and this need to experiment alone satisfies the rational basis test.”); see also Barefoot v. City of Wilmington, 306 F.3d 113, 123 (4th Cir. 2002) (“[S]tates frequently have a variety of annexation procedures; the need to experiment to find the best procedure is itself a rational basis for the North Carolina law.”); Moore v. Detroit School Reform Bd., 293 F.3d 352, 372 (6th Cir 2002) (holding that the Equal Protection Clause does not prohibit State and local “experimentation where no suspect classification or fundamental right is involved”); cf. Morton v. Mancari, 417 U.S. 535, 555, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974) (refusing to disturb, on equal protection grounds, a congressional judgment “rationally designed to further Indian self-government”); Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 732-35 (9th Cir. 2003) (rejecting equal protection challenge to Tribal-State compacts that Congress adopted “to resolve the conflicting interests of the tribes and the states, which it acknowledged as two equal sovereigns”) (citation and internal quotation marks omitted); Newbury v. Prisoner Review Bd., 791 F.2d 81, 87 (7th Cir. 1986) (rejecting due process challenge to parole procedures, partly based on “the public interest in encouraging state experimentation in proper parole release procedures”). Indeed, when “[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality” of a particular social policy, it is entirely rational for Congress (and the courts) to “permit [ ] this debate to continue, as it should in a democratic society.” Glucksberg, 521 U.S. at 751.
Thus, in order to adopt a measured response of federal neutrality, Congress had to draw lines and distinctions between different types of State-recognized marriage. The very process of line-drawing “inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 66 L.Ed.2d 368 (1980) (citation and internal quotation marks omitted). As the Ninth Circuit has observed, “[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.’ ” Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) (quoting Dandridge, 397 U.S. at 485). Thus, “it is within the province of Congress, not the courts, to weigh the evidence and legislate on such issues, unless it can be established that the legislation is not rationally related to a legitimate governmental end.” Kandu, 315 B.R. at 146 (emphasis added).
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The constitutional propriety of Congress’s decision to decline to extend federal benefits immediately to newly recognized types of marriages is bolstered by Congress’s articulated interest in preserving the scarce resources of both the federal and State governments. DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources - and deciding to extend benefits incrementally - are well-recognized legitimate interests under rational-basis review. See Butler, 144 F.3d at 625 (“There is nothing irrational about Congress’s stated goal of conserving social security resources, and Congress can incrementally pursue that goal.”); Hassan v. Wright, 45 F.3d 1063, 1069 (7th Cir. 1995) (“[P]rotecting the fisc provides a rational basis for Congress’ line drawing in this instance.”). Congress expressly relied on these interests in enacting DOMA:
Government currently provides an array of material and other benefits to married couples in an effort to promote, protect, and prefer the institution of marriage.... If [a State] were to permit homosexuals to marry, these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual marriages on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex marriages will thus preserve scarce government resources, surely a legitimate government purpose.
H.R. Rep. No. 104-664, at 18, reprinted in 1996 U.S.C.C.A.N. at 2922.
In the final analysis, plaintiffs contend that equal protection principles effectively precluded Congress from adopting a federal policy of neutrality in the face of evolving state understandings of marriage. On plaintiffs’ view, even though Congress was under no independent constitutional obligation to recognize same-sex marriage before any State did so, once a single State legalized same-sex marriage, equal protection principles mandated that Congress extend federal benefits to such marriages, or withdraw them from all marriages. No constitutional principle, however, mandates such a result, which is fundamentally at odds with our federalist scheme of divided sovereignty, and which could be a substantial disincentive for States to recognize new rights and privileges as circumstances evolve.
VI. DOMA Does Not Violate the Right to Privacy
Plaintiffs also assert that DOMA constitutes “an undue invasion of the Right of Privacy,” citing Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965). See Complaint ¶¶ 17, 27, 28. This claim must fail, first, because the Supreme Court has rejected a “right to privacy” claim in relation to same-sex marriage. One of the arguments made in Baker v. Nelson, referred to above, was that Minnesota’s refusal to permit same-sex marriage constituted “an unwarranted invasion of... privacy” in violation of the Constitution. See Jurisdictional Statement, Baker v. Nelson, No. 71-1027, at 18 (Attachment 2 hereto). In dismissing the appeal in Baker “for want of a substantial federal question,” the Supreme Court necessarily addressed the merits of that claim, and rejected it. 409 U.S. 810 (1972) (Mem); see Hicks v. Miranda, 422 U.S. at 343-44.
Even if Baker were not dispositive in this regard, this Court should reject plaintiffs’ right-to-privacy claim. The Supreme Court has described the contours of this right as follows:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however ... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution ... These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” are included in this guarantee of personal privacy.
Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973) (citations omitted) (emphasis added); see Paul v. Davis, 424 U.S. 693, 712-13, 96 S. Ct. 1155, 47 L.Ed.2d 405 (1976). The Ninth Circuit has reiterated the underlined language. See Grummett v. Rushen, 779 F.2d 491, 493-94 (9th Cir. 1985). And this Court has observed more recently: “The federal constitutional right of privacy is extremely narrow. The right is limited to those personal rights which are ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” Yorkshire v. IRS, 829 F. Supp. 1198, 1202 (C.D. Cal. 1993) (emphasis added); accord Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 532 (1st Cir. 1995); Shields v. Burge,
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874 F.2d 1201, 1210 (7th Cir. 1989).
Under this precedent, plaintiffs cannot rely on a “right to privacy” to supersede DOMA, for as explained above, a “fundamental” right to same-sex marriage has not been recognized as such by the courts. See supra at 25-30; see also Smelt I, 374 F. Supp. 2d at 877-79; Wilson v. Ake, 354 F. Supp. 2d at 1306-07; Kandu, 315 B.R. at 140. Further, as also explained above, even if same-sex marriage had been acknowledged as a fundamental right, there would still be no “fundamental” right to receive federal benefits based on a gay or lesbian marriage, or to require other States to recognize such a marriage.
The Supreme Court’s decision in Lawrence v. Texas does not support plaintiffs’ right-to-privacy claim. Although the Court there relied in part on the right to privacy, the decision dealt with “private” conduct - an adjective that appears twenty-four times in the majority decision. 539 U.S. 558, 564-65 (2003). The Court struck down the subject statute because it “touch[ed] upon the most private human conduct, sexual behavior, and in the most private of places, the home.” That statute, the Court continued, sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.... [A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives ....” Id. at 567 (emphasis added). Thus, the Court emphasized that the case before it did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id. at 578. Lawrence thus offers no support for the proposition that DOMA violates plaintiffs’ right to privacy.
VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech
Plaintiffs next assert, without elaboration or any specific factual allegations, that DOMA violates their “Right of Free Speech.” See Complaint ¶ 17. Apparently plaintiffs’ theory is that their marriage constitutes “speech” under the First Amendment. This claim is groundless because, first, DOMA does not curtail anyone’s right to marry the person of his or her choice, just as it does not affect an individual’s right to travel or right to privacy. DOMA merely permits each State to follow its own policy with regard to same-sex marriage, and defines “marriage” and “spouse” for purposes of federal statutes. It does not affect the ability of any person to contract any marriage permitted by State law, and it cannot, for this reason alone, be said to infringe upon any speech rights related to same-sex marriage.
Even if DOMA could be seen as limiting one’s ability to enter into a same-sex marriage, plaintiffs’ “free speech” claim would fail because marriage, whether same-sex, or heterosexual, is not “expressive conduct” under the First Amendment. The Supreme Court has “rejected the view that conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” See Rumsfeld v. Forum for Academic & Inst’l Rights, 547 U.S. 47, 65-66, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006) (internal quotation marks omitted). Rather, conduct may be considered speech under the First Amendment only if it is “inherently expressive” - that is, when it is “the equivalent of speech.” See id. at 66; James v. City of Long Beach, 18 F. Supp. 2d 1078, 1082 (C.D. Cal. 1998).
In determining whether conduct falls within the First Amendment, the courts consider “whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” See Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) (internal quotation marks omitted)). The courts also examine whether the conduct in question is “integral to, or commonly associated with, expression,” and whether “the challenged statute is directed narrowly and specifically at expression or conduct commonly associated with expression.” See Roulette v. City of Seattle, 97 F.3d 300, 304, 305 (9th Cir. 1996) (internal quotation marks omitted).11 Whether conduct is expressive must be judged based on the conduct alone, not in light of whatever speech may accompany it. See Forum for Academic & Inst’l Rights, 547 U.S. at 66. If it is “unclear” what message the actor intends to convey, it will not constitute expressive conduct. See Villegas v. City of Gilroy, 363 F. Supp. 2d 1207, 1217-18 (N.D. Cal. 2005). “The party asserting that [his] conduct is expressive bears the burden of demonstrating that the First Amendment applies, and that party must advance more than a mere ‘plausible contention’ that its conduct is expressive.” Church of Amer. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S. Ct. 3065, 82 L.Ed.2d 221 (1984)).
10 Because Baker held that the denial of same-sex marriage did not violate the equal protection clause, it also relevant to our argument that DOMA does not make distinctions based on any suspect classifications. See infra at Part V.C.
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Getting married or being married does not, under the circumstances presented here, constitute “expressive conduct” pursuant to these principles. Marrying is not “inherently expressive” or “commonly associated” with expression, and no “particularized message” is likely to be “understood” from the plaintiffs’ being married.12 See Forum for Academic & Inst’l Rights, 547 U.S. at 66; Texas v. Johnson, 491 U.S. at 404; Roulette, 97 F.3d at 304. As this Court observed in relation to plaintiffs’ First Amendment claim against the State statute in their earlier action, “[i]t is not readily apparent [that] obtaining a marriage license is protected First Amendment activity.” Smelt I, 374 F. Supp. 2d at 867. Similarly, the Ninth Circuit noted, in affirming this Court’s decision to abstain from deciding plaintiffs’ State-law claim: 11 Thus, for example, picketing, burning a flag, wearing a black armband, or dancing for an audience may constitute “speech,” see
Texas v. Johnson, 491 U.S. at 404-06; Willis v. Town of Marshall, N.C., 426 F.3d 251, 257-61 (4th Cir. 2005), whereas attending a sports event, possessing a firearm, engaging in sexual activity in a commercial establishment, or dancing for one’s own enjoyment (even in a public place) does not. See James v. City of Long Beach, 18 F. Supp. 2d at 1082-83; Nordyke v. King, 319 F.3d 1185, 1189-90 (9th Cir. 2003); Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S. Ct. 3172, 92 L.Ed.2d 568 (1986); Willis, 426 F.3d at 257-61.
We do not overlook Smelt and Hammer’s claim that this case touches on First Amendment issues, which should dissuade us from abstention .... But it is difficult, or impossible, to see a true speech problem here .... All that is involved here is the failure to issue a marriage license.
Smelt II, 447 F.3d at 681 n.22; see Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 146-47 (N.Y. App. Div. 2006) (holding that State’s prohibition of same-sex marriage did not violate constitutional free speech rights).
Therefore, DOMA does not violate any speech rights under the First Amendment.
VIII. DOMA Cannot Be Said to Infringe Upon any “Right” under the Ninth Amendment
Finally, plaintiffs contend that DOMA violates what they call “the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People.” See Complaint ¶ 17. The Court of Appeals has repeatedly held, however, that the Ninth Amendment is not an independent source of rights; this provision of the Constitution “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991).
“It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.” San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996) (quoting Laurence H. Tribe, American Constitutional Law 776 n.14 (2d ed. 1988)) (emphasis in original); accord Jenkins v. Commissioner, 483 F.3d 90, 92 (2d Cir. 2007) (“The Ninth Amendment is not an independent source of individual rights; rather, it provides a ‘rule of construction’ ....”); Froehlich v. Wisconsin Dep’t of Corrections, 196 F.3d 800, 801 (7th Cir. 1999) (“The Ninth Amendment is a rule of interpretation rather than a source of rights. Its purpose is to make clear that the enumeration of specific rights in the Bill of Rights is not intended ... to deny the existence of unenumerated rights.”) (citations omitted).13 Thus, even more to the point in relation to this case, the Court of Appeals has specifically held that “the ninth amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986). 12 Without any accompanying speech, an observer would not even know, for example, whether plaintiffs were expressing their
feelings for each other, their views about same-sex marriage as a social matter, their views about the constitutionality of not permitting same-sex marriage, or their views on some other subject. See Villegas, 363 F. Supp. 2d at 1217-18 (rejecting “expressive conduct” claim where plaintiff’s message was “unclear”).
Accordingly, plaintiffs cannot assert a personal “right” under the Ninth Amendment.
CONCLUSION 30

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 1683906...
For the foregoing reasons, the United States’ motion to dismiss should be granted, and all of plaintiffs’ claims against the United States should be dismissed with prejudice. Dated: June 11, 2009 Respectfully submitted, TONY WEST Assistant Attorney General JAMES J. GILLIGAN Assistant Director /s/W. Scott Simpson W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Federal Programs Branch Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA 13 But cf. United States v. Choate, 576 F.2d 165, 181 (9th Cir. 1978) (“Rights under the Ninth Amendment are only those ‘so basic
and fundamental and so deep-rooted in our society’ to be truly ‘essential rights,’ and which nevertheless, cannot find direct support elsewhere in the Constitution.”) (quoting Griswold v. Connecticut, 381 U.S. 479, 488-489 (Goldberg, J., concurring)). Even if this statement in Choate were the law, it would not help the plaintiffs here, given that, as shown above, same-sex marriage has not been recognized as a “fundamental” right.
31

 
 Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 2135250...
2009 WL 2135250 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California.
Arthur SMELT and Christopher Hammer, Plaintiff, v.
UNITED STATES OF AMERICA, State of California and Does 1 through 1,000, Inclusive, Defendant. No. SACV-09-286 DOC (MLGx). July 10, 2009.
Reply Memorandum in Support of Motion to Dismiss Action Against Defendant State of California for Failure to State A Claim
Edmund G. Brown Jr., Attorney General of California, Jonathan K. Renner, Senior Assistant Attorney General, Stephen P. Acquisto, Supervising Deputy Attorney General, Mark R. Beckington, Deputy Attorney General, State Bar No. 126009, 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, Telephone: (213) 897-1096, Fax: (213) 897-1071, E-mail: Mark.Beckington@doj.ca.gov, Attorneys for Defendant State of California. Judge: The Hon. David O. Carter. Date: July 13, 2009
Time: 8:30 a.m.
Ctrm: 9D
Trial Date: None
INTRODUCTION
Filed just two court days before the hearing on the motion to dismiss, Plaintiffs’ opposition is untimely under the local rules of court. Given the prejudice caused by the late filing, the Court may properly disregard the opposition and grant the motion without leave to amend.
Moreover, none of Plaintiffs’ arguments defeat the motion. The United States Supreme Court decisions on sovereign immunity cited by Plaintiffs have no bearing on their standing to sue. Nor is standing available under the private attorney general doctrine. Finally, Plaintiffs’ apparent justifications for standing are contrary to the California Supreme Court’s decision in Strauss v. Horton (2009) 46 Cal.4th 364.
In the course of their opposition, Plaintiffs fail to cite any pertinent authority on the subject of standing or meaningfully address the standing arguments presented in the moving papers. The untimely opposition is tantamount to a concession that these particular plaintiffs have no legitimate basis to assert standing in this litigation. Therefore, the motion to dismiss under Rule 12(b)(6) should be granted.
ARGUMENT
I. PLAINTIFFS’ OPPOSITION TO THE MOTION TO DISMISS IS UNTIMELY AND VIOLATES THE LOCAL RULES OF COURT.
1

Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 2135250...
Plaintiffs filed their opposition to the motion to dismiss on Thursday, July 9, 2009, two court days before the scheduled hearing on the motion. Under the local rules, the opposition was due “not later than fourteen (14) days before the date designated for the hearing of the motion,” in this case, by no later than June 29, 2009. (L.R. 7-9.)
The Court may decline to consider the late opposition or deem it as consent to granting the motion: The Court may decline to consider any memorandum or other paper not filed within the deadline set by order or local rule. The failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion.
(L.R. 7-12.)
Further, the proof of service attached to the amended opposition shows that the pleading was served by mail on the Attorney General’s Office on July 9, 2009. The Central District local rules require a party opposing the motion to “serve upon all other parties and file with the Clerk” the evidence and memorandum in opposition. (L.R. 7-9.) The date and form of mailing made it unlikely that the Attorney General would receive the opposition before the hearing and, at a minimum, did not comply with the spirit of the local rules.1
Footnotes
Plaintiffs’ time of filing and method of service have made it impossible for the State to file a reply brief within the time limit specified by the local rules. They have also left the State with little time to prepare a reply brief and respond to the cases and arguments presented in the brief.
The Court may appropriately consider these factors in deciding whether to consider the Plaintiffs’ opposition or the weight to be given to the arguments made therein. Because of the extremely late filing, and the presumptive prejudice caused to the State from the late filing, the Court is respectfully requested to disregard the opposition on this basis and grant the motion to dismiss.
II. PLAINTIFFS’ RELIANCE ON SUPREME COURT SOVEREIGN IMMUNITY CASES DOES NOT ADDRESS THE STANDING ISSUES RAISED BY THE MOTION.
In their brief, Plaintiffs rely heavily on a series of Supreme Court decisions that they characterize as addressing the doctrine of sovereign immunity. (Opp., pp. 1-4.) These citations miss the mark because the motion to dismiss is not based on sovereign immunity but on Plaintiffs’ lack of standing to bring suit against the State.
For example, in United States v. Georgia (2006) 543 U.S. 151, the Supreme Court addressed whether a state prison inmate may sue the State for damages under Title II of the Americans with Disabilities Act. Relying on Congress’s enforcement powers under section 5 of the Fourteenth Amendment, the Court held that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at p. 159 (original emphasis).
Plaintiffs cite United States v. Georgia as unqualifiedly asserting that “Congress is expressly granted authority to enforce the substantive provisions of the Fourteenth Amendment” and assert that the decision “clearly says that state governments may be sued for violating the Constitution so far as it is reasonably practical.”2 (Opp., p. 3:17-20.) But the full passage in United States v. Georgia actually states: “ ‘In [§ 5] Congress is expressly granted authority to enforce ... the substantive provisions of the Fourteenth Amendment’ by providing actions for money damages against the States.” United States v. Georgia, 543 U.S. at p. 158, quoting Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 456. 1 The Attorney General’s Office obtained a copy of the motion only by checking the Court’s docket to see if one had been filed.
Thus, United States v. Georgia is easily distinguishable from the Plaintiffs’ lawsuit because the Plaintiffs are not presenting a claim derived from Congress’s section 5 enforcement power. Nor are the Plaintiffs, unlike the petitioner in United States v. Georgia, bringing suit to enforce rights under a federal statute.
2

Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 2135250...
Similarly, the Supreme Court’s decision in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank (1999) 527 U.S. 627 addressed Congress’s section 5 enforcement power to implement a legislative solution, not the particular petitioner’s standing to sue. There, the Court held that the abrogation of the States’ sovereign immunity in the Patent and Plant Variety Protection Remedy Clarification Act was invalid because it could not be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment’s Due Process Clause. (See, id. at pp. 633-648.)
The same is true of the other cases cited by Plaintiffs. See Tennessee v. Lane (2004) 541 U.S. 509 [holding that Title II of the ADA, as applied to cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’s enforcement power under the Fourteenth Amendment]; Nevada Dept. of Human Resources v. Hibbs (2003) 538 U.S. 721 [recognizing power of Congress to abrogate Eleventh Amendment immunity from suit and enable employees to recover damages against State for violation of Family Medical Leave Act]; City of Boerne v. Flores (1997) 521 U.S. 507 [holding that Religious Freedom Restoration Act exceeded Congress’s power under section 5 of the Fourteenth Amendment].
None of these decisions bear on the question of whether these particular Plaintiffs have sufficient standing to sue California in federal court to obtain a declaratory judgment holding that a duly enacted state initiative violates the United States Constitution. Since Plaintiffs are not seeking to validate rights recognized by Congress acting under its Fourteenth Amendment enforcement power, this line of authority does not counter or even address the arguments made in the motion to dismiss. Therefore, this portion of Plaintiffs’ opposition should be disregarded.
III. THE CALIFORNIA PRIVATE ATTORNEY GENERAL STATUTE DOES NOT CONFER STANDING ON PLAINTIFFS TO BRING SUIT IN FEDERAL COURT.
In the heading that begins their brief and in one short paragraph, Plaintiffs, without citation to any authority whatsoever, assert that California’s private attorney general law confers standing on Plaintiffs to challenge the constitutionality of Proposition 8. (Opp., pp. 1, 4.) No such authorization can be inferred from this doctrine.
“The ‘private attorney general’ concept ‘seeks to encourage suits effectuating a strong congressional or national policy by awarding substantial attorney’s fees, regardless of defendants’ conduct, to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.’ ” 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 256, p. 836, quoting D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 27. In California, the doctrine has been codified to define the circumstances authorizing a fee award. Cal. Code Civ. Proc., § 1021.5.
Unmentioned by Plaintiffs is the federal Civil Rights Attorney’s Fees Awards Act of 1976, which “gives the district courts discretion to award reasonable attorneys’ fees to the prevailing party (other than the United States) in an action or proceeding to enforce provisions of various [federal] statutes ....” 7 Witkin, § 242, p. 816.
Plaintiffs cite no authority suggesting that these attorney fee provisions independently confer standing to bring the claims sought in this case. Absent supporting authority, Plaintiffs may not bootstrap their way to subject matter jurisdiction in this matter.
IV. PLAINTIFFS HAVE NOT ESTABLISHED ANY BASIS FOR STANDING.
Near the end of their brief, Plaintiffs, again without any citation to authority, suggest that they have standing on grounds that their marriage is a “second class marriage.” This assertion is not consistent with the California Supreme Court’s holding in Strauss v. Horton.
As noted in the motion to dismiss, Strauss held that Proposition 8 was not retroactive and did not apply to the approximately 18,000 same-sex marriages occurring before passage of Proposition 8. Because Plaintiffs allege that they were married in July 2008, before the November election in which the voters adopted the measure, they are among the same-sex couples whose marriages were recognized as valid under California law by the Supreme Court.
3

Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 2135250...

Nor can their marriage be pejoratively characterized as “second-class” under California law consistently with the holding in Strauss. There, the California Supreme Court held that the pre-election marriages, which would include Plaintiffs’ marriage, “remain valid in all respects.” Strauss v. Horton, 46 Cal.4th at p. 474.
Alternatively, plaintiffs appear to argue that they may bring suit because other couples are being denied fundamental constitutional rights. But this is clearly not a basis for these plaintiffs, whose marriage is unaffected by Proposition 8, to assert standing to challenge the measure’s constitutionality. “The claim must be for injury to plaintiff’s own legal rights and interests, rather than the legal or interests of third parties.” Schwarzer, et. al., Federal Civ. Pro. Before Trial (The Rutter Group 2009) § 2:1207, p. 2E-3 (original emphasis).)
Further, Plaintiffs mischaracterize the outcome of their prior lawsuit. (Opp., p. 5:14-19.) The district court ultimately dismissed their lawsuit against the State as moot because they had been lawfully married. (See Request for Judicial Notice.) The same result should be reached here.
Finally, it bears noting that Plaintiffs completely mischaracterize the Attorney General’s argument regarding Proposition 8 and the reasons why Plaintiffs lack standing. (Opp., pp. 4:22-5:19.) Needless to say, this mischaracterization does not establish any basis for standing.

CONCLUSION

Plaintiffs’ untimely opposition should be disregarded as in violation of the local district court rules. Further, Plaintiffs have failed to meet their burden to establish sufficient basis for standing to challenge the constitutionality of Proposition 8 in federal court. Because standing is a fundamental element of subject matter jurisdiction, the motion to dismiss under Rule 12(b)(6) should be granted without leave to amend.

Dated: July 10, 2009

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of California

JONATHAN K. RENNER

Senior Assistant Attorney General

STEPHEN P. ACQUISTO

Supervising Deputy Attorney General

/s/ Mark R. Beckington

MARK R. BECKINGTON

Deputy Attorney General

Attorneys for Defendant State of California

2

Plaintiffs do not provide any citation at this point in their brief, but their reference to Goodman, the petitioner in United States v.

Georgia, and the quoted material in the accompanying paragraph is clearly referencing that decision. (See Opp., p. 3:11-20.)

4

Arthur SMELT and Christopher Hammer, Plaintiff, v...., 2009 WL 2135250... 5

 
 Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2251795...
2009 WL 2251795 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur Bruno SMELT and Christopher David Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, inclusive, Defendants.
No. SACV09-00286 DOC (MLGx). July 27, 2009.
Plaintiffs’ Opposition to Defendant United States of America’s Motion to Dismiss
Richard C. Gilbert / SBN 85912, 950 West Seventeenth Street, Suites D & E, Santa Ana, California 92706-3573, Telephone: 714/ 667-1038, Fax: 714/ 667-2388, Attorney for Plaintiffs. FILED CONCURRENTLY WITH PLAINTIFFS’ MOTION TO DEEM THE COMPLAINT FILED NUNC PRO TUNC AND THE FEE WAIVER GRANTED
RES JUDICATA In Smelt and Hammer I, the United States Court of Appeal for the Ninth Circuit published its ruling in CV-04-01042-GLT.
In that ruling, the Appellate Court held that to have standing to address all legal issues in DOMA, the parties must be married. The Court did not address the issue of whether the marriage could be a second class marriage not protected as a fundamental Constitutional right as all same gender California marriages are second class marriages unprotected by the United States Constitution.
While Plaintiffs respectfully disagree with the Court’s analysis of standing, to accommodate the ruling of the Court, Plaintiffs reluctantly, but successfully, obtained their second class fishing license style marriage from the State of California subject to revocation, at will, by the State of California, unlike any opposite gender marriage which is protected as a fundamental Constitutional right.
Now that Plaintiffs have this fishing license class B marriage, Plaintiffs have standing to address the issues in the Complaint.
PLAINTIFFS SOUGHT ORIGINAL JURISDICTION FOR THIS CASE IN THE UNITED STATES DISTRICT COURT BUT WERE DENIED A FEE WAIVER
On November 4, 2008, Plaintiffs sought to file this instant Complaint in Smelt and Hammer II. Every prior Court including Judge Gary Taylor, the Appellate Court for the Ninth Circuit Court of Appeals, and the United States Supreme Court approved of each Plaintiffs’ application for a fee waiver. Each Plaintiff is permanently disabled and unable to work.
The same applications for a fee waiver for each Plaintiff was submitted to this Federal District Court with this instant Complaint. Judge Stotler denied the fee waivers. As a result, it was necessary for the Plaintiffs to file in State court because the doors to the Federal Court were locked shut to Smelt and Hammer as a result of the denial of the fee waivers.
Counsel for Smelt and Hammer contacted counsel for the United States of America and advised counsel of the above facts. It was understood in the course of the meet and confer that the United States would remove the case back to Federal Court.
1

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2251795...
Perhaps it was an oversight for the United States of America to fail to mention any of the above facts in their motion which may have inadvertently led the court to misunderstand why Plaintiffs filed in State court.
Concurrently with this Opposition, Plaintiffs are filing a motion to have the original filing and fee waiver applications be deemed filed and approved NUNC PRO TUNC in the interests of justice.
Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. It’s most recent ruling on the issue, in United States vs. Georgia, Nos. 04-12-3, 04-1236, 2006. WL 4397 (U.S. Jan. 10, 2006) actually opens the door to more lawsuits against states by holding that Plaintiffs may use federal laws to sue state governments if they claim that the state is violating the Constitution.
In City of Bourne, the Supreme Court declared that the federal Religious Freedom Restoration Act (“RFRA”) is a 1993 United States federal law aimed at preventing laws which substantially burden a person’s free exercise of their religion, was unconstitutional as applied to state and local governments, because it exceeded the scope of Congress’s power under Section 5.
In subsequent cases, the Supreme Court considered whether several other statutes constituted a valid exercise of Congress’s Section 5 authority and thus could be used to sue state governments. In Florida Prepaid vs. College, 527 U.S. 627 (1999) the Supreme Court held that state governments could not be sued for patent infringement even though a federal statute expressly authorized such suits.
The Supreme Court explained that the federal law did not fit under Congress’ Section 5 power because Congress had not proven that the states were engaged in pervasive unconstitutional behavior when infringing patents.
The Supreme Court shifts course in two more recent cases, the Supreme Court allowed more leeway for lawsuits filed against state governments under federal statutes. Nevada Department of Human Resources vs. Hibbs, 538 U.S. 721 (2003), was a Supreme Court case which held that Congress had constitutionally abrogated the states’ sovereign immunity by enacting the Family and Medical Leave Act of 1993. The Court held that state governments may be sued for violating the family leave provisions of the Family and Medical Leave Act.
The Supreme Court found that when Congress enacted this law it was concerned with gender discrimination and that the loss of family leave disproportionately affected women in the workplace. The Supreme Court said gender discrimination receives intermediate scrutiny rather than the rational-basis review that applies to age or disability cases, and it concluded that Congress has more latitude to legislate under Section 5 when it aims to eliminate discrimination that receives the courts’ heightened scrutiny.
A year after Hibbs, in Tennessee v. Lane, 541 U.S. 509 (2004) was a case in the Supreme Court of the United States involving Congress’ enforcement powers under Section 5 of the Fourteenth Amendment, The Supreme Court held that state governments may be sued under Title II of the ADA when they discriminate against people with disabilities by limiting their access to the courts.
The case involved a criminal defendant who crawled on his hands and knees to reach a second-floor courtroom that had no wheelchair access or other accommodation for those with disabilities. In its ruling, the Supreme Court emphasized that access to the courts is a long-recognized, basic right and that states can be sued for keeping people with disabilities from exercising it.
But the Lane ruling left many questions unanswered. The Supreme Court said only that states can be sued under Title II if they violate a fundamental right; it did not consider whether Title II could be used to sue state governments for any other reasons.
The Eleventh Circuit upheld a trial court ruling that dismissed Goodman’s claims, but the Supreme Court reversed in a unanimous decision. In a brief opinion written by Justice Antonin Scalia, the Supreme Court stated, “While the members of this Court have disagreed regarding the scope of Congress’ ‘prophylactic’ enforcement powers under 6 Section 5 of the
2

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2251795...
Fourteenth Amendment, no one doubts that Section 5 grants Congress the power to ‘enforce ... the provisions of the amendment by creating private remedies against the states for actual violations of those provisions.’ The Court declared that “Congress is expressly granted authority to enforce the substantive provisions of the Fourteenth Amendment. The decision clearly says that state governments may be sued for violating the Constitution so far as it is reasonably practical.
After the flurry of sovereign immunity cases the Supreme Court decided between 1996 and 2004, a simple, but controversial principle which has emerged. If a federal law targets types of discrimination that receive heightened scrutiny, then it can be used to sue state governments, even without proof of past constitutional violations. But if the statue involves discrimination or other rights violations that don’t receive heightened scrutiny, then Congress cannot authorize suits against states, no matter how elaborate the legislative history. In the instant case of Smelt and Hammer, it has always been argued that same gender marriage is a constitutional fundamental right no different than opposite gender marriage and that, at a minimum, heightened scrutiny must be the standard to adjudicate a fundamental constitutional right.
In Hibbs, for example, the Court found that states could be sued for violating the family leave provision, even without finding that the absence of family leave results in unconstitutional gender discrimination.
United States v. Georgia does not alter this framework but adds to it in an important way. The Supreme Court held that a state government can be sued for violating a federal law when the law authorizes a remedy for a constitutional violation. This will expand the circumstances in which such lawsuits can go forward.
The Hibbs and Lane decisions involve rights that receive heightened scrutiny. In United States vs. Georgia, the Supreme Court focused on the Eighth Amendment’s prohibition of cruel and unusual punishment. The Supreme Court has never articulated a level of scrutiny for this right. In fact, Scalia’s opinion never mentions heightened scrutiny.
Perhaps we cannot interpret United States vs. Georgia as simply holding that a state can be sued using federal law if the suit alleges a direct violation of a right or if there is a heightened-scrutiny claim. If so, then the ruling significantly expands the possibilities for suing state governments. Again, Smelt and Hammer have always asserted, and still do, a heightened scrutiny issue in this case.
California’s Private Attorney General Statute authorizes this case by private counsel because the State of California is alleged to be violating a fundamental constitutional right. guaranteed by the United States Constitution.
The Attorney General for the State of California simply argues the “M” word as a misnomer, and certainly not as a fundamental constitutional right.
California is now using the word “marriage” as a misnomer like smoke and mirrors to present a misleading argument that since Smelt and Hammer are recognized by California to have a second class marriage, less than a fundamental constitutional right guaranteed by the United States Constitution there is no standing.
This court must look to what the State of California means by the use of the word “marriage” as it is applied to Smelt and Hammer.
California does not mean that Smelt and Hammer have any fundamental constitutional right to be married. In fact, California does not even permit same gender marriage to take place at this time. Not only is there no fundamental constitutional right for same gender couples to marry in California, there is no right at all. Hence, the smoke screen argument that uses the word “marriage” with a wholly different meaning than that of an opposite gender couple.
Therefore, the motion to dismiss is a sham, Marriage to the moving party in this case means nothing more than a second class statutory right to be married until such time as the State of California decides to dissolve the right to this second class marriage.
If this same argument were applied to opposite gender marriages in California there would be a revolution.
Furthermore, in Smelt and Hammer I, the Ninth Circuit Court of Appeals ordered the case “stayed” based upon the claim that
3

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2251795... Smelt and Hammer must be married to present the issues at bar. It is therefore absurd for California to urge this Court to ignore the ruling of the Ninth Circuit Court of Appeals now that Smelt and Hammer have achieved second class marriage status. Clearly, the Ninth Circuit ruled that if Smelt and Hammer were married they had standing to address DOMA in it’s entirety. For these reasons, it is respectfully requested that the Court deny the Motion. Dated: July 24, 2009 Respectfully Submitted, /S/ Richard C. Gilbert, Attorney for Plaintiffs
4

 
 Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...

2009 WL 2251796 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur SMELT, et al., Plaintiffs, v.
UNITED STATES OF AMERICA, et al., Defendants, and
Dennis Hollingsworth, et al., Defendant-Intervenors.
No. SACV-09-286 DOC (MLGx). July 27, 2009.

Intervenors’ Memorandum of Points And Authorities in Support of United States of America’s Motion to Dismiss
Brian W. Raum (NY Bar No. 2856102)*, James A. Campbell (OH Bar No. 0081501)*, Alliance Defense Fund, 15100 North 90th Street, Scottsdale, Arizona 85260, Phone: (480) 444-0020, Fax: (480) 444-0028, Email: braum @telladf.org, Email: jcampbell@telladf.org, Andrew P. Pugno (CA Bar No. 206587), Law Offices of Andrew P. Pugno, 101 Parkshore Drive, Suite 100, Folsom, California 95630, Phone: (916) 608-3065, Fax: (916) 608-3066, Email: andrew@pugnolaw.com, Sam Kim (CA Bar No. 212964), Michael Parker (CA Bar No. 138253), Sam Kim and Associates, PC, 5661 Beach Boulevard, Buena Park, California 90621, Phone: (714) 736-5501, Fax: (714) 736-9901, Attorneys for Defendant-Intervenors.
Footnotes

The Honorable David O. Carter. Hearing Date: August 24, 2009

Time: 8:30 a.m.

Courtroom: 9D

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................................................................

iii

INTRODUCTION ......................................................................................................................................................................

1

ARGUMENT ...............................................................................................................................................................................

1

I. In their DOMA challenge, Plaintiffs have not pled sufficient facts to meet the constitutional standing

2

requirements .................................................................................................................................................................................

A. The Ninth Circuit’s decision dismissing Plaintiffs’ previous challenge to DOMA for lack of

3

standing still controls, as Plaintiffs have failed to cure all the deficiencies raised in that decision ...............

B. Prudential-standing considerations further show that Plaintiffs lack standing to challenge Section 3

4

of DOMA ......................................................................................................................................................................................

II. Plaintiffs have failed to state a valid due-process claim ..........................................................................................

5

1

Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
A. Plaintiffs’ interest in marrying a person of the same sex is not a fundamental right under the Due Process Clause ............................................................................................................................................................................. B. DOMA satisfies rational-basis review ........................................................................................................................... III. Plaintiffs have not alleged facts sufficient to maintain their equal-protection claim ................................... A. Plaintiffs have not alleged that DOMA invidiously discriminates against a class of persons-a required element of equal-protection claims ..................................................................................................................... B. Same-sex couples are not similarly situated to opposite-sex couples for the purpose of DOMA ............ C. DOMA does not impermissibly discriminate on the basis of sex ........................................................................ D. DOMA does not impermissibly discriminate based on sexual orientation ...................................................... IV. DOMA is a valid exercise of the federal government’s power under the Full Faith and Credit Clause ............................................................................................................................................................................................. V. Plaintiffs’ remaining claims should be summarily dismissed ............................................................................... CONCLUSION ...........................................................................................................................................................................
TABLE OF AUTHORITIES Cases: Andersen v. King County, 138 P.3d 963 (Wash. 2006) ............................................. Ashcroft v. Iqbal, 5 129 S. Ct. 1937 (2009) ................................................................... Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................ Ball v. Massanari, 254 F.3d 817 (9th Cir. 2001) ......................................................... Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522 (1849) ...................................... Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................... Brinson v. Brinson, So. 2d 653 (1957) ............................................................................ Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221 (9th Cir. 1990) .................................................................................................... City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................ City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 2003) .. Collins v. City of Harker Heights, 503 U.S. 115 (1992) ........................................... Commonwealth v. U.S. Dep’t of Health and Human Servs., No. 1:09-cv-11156-JLT (D. Mass. filed July 8, 2009) ....................................................... Conaway v. Deane, 932 A.2d 571 (Md. 2007) .............................................................

5
8 10 11
11 13 13 166
18 19
7, 9, 13 1, 2, 18
13 14 16 2 17 11-12
10, 14, 15 11, 13 5 5
7, 9, 13 2

Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ............................................. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) .................................. FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ................................................ Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) .......... Frontiero v. Richardson, 411 U.S. 677 (1973) ............................................................ Gaines v. Poindexter, 155 F. Supp. 638 (W.D. La. 1957) ....................................... Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ...................... Henderson v. Henderson, 87 A.2d 403 (Md. 1952) ................................................... Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................................ Hesington v. Estate of Hesington, 640 S.W.2d 824 (Mo. Ct. App. 1982) .......... High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ........................................................................................................................................... Hilton v. Guyot, 159 U.S. 113, 164 (1895) .................................................................... In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................ In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................................ Kelderhaus v. Kelderhaus, 467 S.E.2d 303 (Va. Ct. App. 1996) .......................... Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................. Lyng v. Castillo, 477 U.S. 635 (1986) ............................................................................. Maryland v. Craig, 497 U.S. 836 (1990) ....................................................................... Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002) ........................................... Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ........................................ M’Elmoyle v. Cohen, U.S. (13 Pet.) 312 (1839) .......................................................... Metro. Life. Ins. Co. v. Chase, 189 F. Supp. 326 (D. N.J. 1960) ........................... Michael M. v. Superior Court, 450 U.S. 464 (1981) .................................................. Miller v. Albright, 523 U.S. 420 (1998) ......................................................................... Milliken v. Pratt, 125 Mass. 374 (1878) .........................................................................

1 2 4 8 14 14 17 6 17 7, 9-10, 13 17 14, 15
17 7, 9, 13
13 17 7 15 8 17 15 1 17 11, 12 12 18
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Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ......................................... Murphy v. Ramsey, 114 U.S. 15 (1885) .......................................................................... Pacific Employers Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493 (1939) ......................................................................................................................................................... Pennoyer v. Neff, U.S. 714 (1877) .................................................................................... Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201 (1941) ................................... Reno v. Flores, 507 U.S. 292 (1993) ............................................................................... Rostker v. Goldberg, 453 U.S. 57 (1981) ....................................................................... Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991) ................................ Shaffer v. Heitner, 433 U.S. 186 (1977) ......................................................................... Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .............................. Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) ....................................... Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ...................... Sosna v. Iowa, 419 U.S. 393 (1975) ................................................................................. Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) ........................ Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................... Washington v. Davis, 426 U.S. 229 (1976) ................................................................... 15 Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................. Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ............................................ Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ......................................... Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................................................... Constitutional Provisions and Statutes: 1 U.S.C. § 7 .............................................................................................................................. 13 Del. Code § 101 ................................................................................................................ 23 Pa. Cons. Stat. § 1704 ..................................................................................................... 28 U.S.C. § 1738C ................................................................................................................. 42 U.S.C. § 2000cc ................................................................................................................ 750 Ill. Com p. Stat. 5/212 ..................................................................................................

7, 9, 1 6 18
1 18 5 12 19 1 7-8, 11 1, 3, 4 3, 6, 9, 13 1 1 2 1 6, 8 7 14 8, 12
3, 7 7 7 3 12 7
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Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...

Ala. Const. art. I, § 36.03 .....................................................................................................

7

Alaska Const. art. 1, § 25 .....................................................................................................

7

Ariz. Const. art. XXX , § 1 .................................................................................................

7

Ark. Const. am end. 83, § 1-3 ............................................................................................

7

Cal. Const. art. I, § 7.5 ..........................................................................................................

7

Cal. Civ. Code § 51 ................................................................................................................

15

Cal. Civ. Code § 51.7 ............................................................................................................

15

Cal. Educ. Code § 220 ..........................................................................................................

15

Cal. Educ. Code § 51500 .....................................................................................................

15

Cal. Fam. Code § 297 ............................................................................................................

15

Cal. Penal Code § 422.55 ....................................................................................................

15

Col. Const. art. II, § 31 .........................................................................................................

7

Fla. Const. art. I § 27 .............................................................................................................

7

Ga. Const. art. I, § IV ............................................................................................................

7

Haw. Rev. Stat. § 572-1 .......................................................................................................

7

Haw. Rev. Stat. § 572-3 .......................................................................................................

7

Idaho Const. art. III, § 28 .....................................................................................................

7

Ind. Code § 31-11-1-1 ...........................................................................................................

7

Kan. Const. art. XV , § 16 ...................................................................................................

7

Ky. Const. § 233A ..................................................................................................................

7

La. Const. art. X II, § 15 ......................................................................................................

7

Md. Code, Fam. Law § 2-201 ............................................................................................

7

Mich. Const. art. I, § 25 ........................................................................................................

7

M inn. Stat. § 517.01 .............................................................................................................

7

Miss. Const. art. XIV, § 263A ...........................................................................................

7

Mo. Const. art. I, §33 ............................................................................................................

7

Mont. Const. art. X III, § 7 ..................................................................................................

7

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Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...

Neb. Const. art. I, § 29 ..........................................................................................................

7

Nev. Const. art. I, § 21 ..........................................................................................................

7

N.C. Gen. Stat. § 51-1.2 .......................................................................................................

7

N.D. Const. art. IX , § 28 .....................................................................................................

7

N.J. Stat. § 3 7:1-1 ..................................................................................................................

7

N.M. Stat. § 40-1-1 ................................................................................................................

7

N.Y. Dom. Rel. Law § 5-7 ..................................................................................................

7

Ohio Const. art. XV, § 11 ....................................................................................................

7

Okla. Const. art. II, § 35 .......................................................................................................

7

Or. Const. art. XV , § 5a ......................................................................................................

7

R.I. Gen. Law s § 15-1-1 - 15-1-5 ....................................................................................

7

S.C. Const. art. X V II, § 15 ................................................................................................

7

S.D. Const. art. XX I, § 9 .....................................................................................................

7

Tenn. Const. art. X I, § 18 ...................................................................................................

7

Tex. Const. art. I, § 32 ..........................................................................................................

7

U.S. Const. art. IV, § 1 .........................................................................................................

16

Utah Const. art. I, § 29 ..........................................................................................................

7

Va. Const. art. I, § 15-A .......................................................................................................

7

Wash. Rev. Code § 26.04.010-20 .....................................................................................

7

Wis. Const. art. XIII, § 13 ...................................................................................................

7

W.Va. Code § 48-2-603 .......................................................................................................

7

Wyo. Stat. § 20-1-101 ...........................................................................................................

7

INTRODUCTION
This is the second time Plaintiffs have tried to challenge the constitutionality of the federal Defense of Marriage Act. The Ninth Circuit dismissed their first attempt because they lacked standing. Smelt v. County of Orange, 447 F.3d 673, 683-686 (9th Cir. 2006). Plaintiffs raise the same arguments again in this case, the only difference being that they have now entered into a legal relationship recognized by the State of California as a marriage. But that fact alone does not remedy the standing deficiencies identified by the Ninth Circuit in Plaintiffs’ previous lawsuit. Plaintiffs still have not alleged that another state has refused to recognize their relationship, nor that they have actually sought or been denied any federal benefit given to married couples-the two ways in which DOMA can be triggered. Thus, Plaintiffs do not have standing to challenge DOMA.
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Plaintiffs’ challenge to DOMA also fails on the merits. Many of their allegations lack the factual support required to plead a cognizable claim under the Federal Rules of Civil Procedure. But even if Plaintiffs have provided sufficient factual support for their claims, DOMA is subject only to rational-basis review, which is satisfied as a matter of law. Accordingly, Intervenors join in the United States of America’s motion and respectfully request that Plaintiffs’ challenge to DOMA be dismissed.
ARGUMENT
In recent years, the Supreme Court has raised the bar for pleading standards under Federal Rule of Civil Procedure 8. Gone are the days when a complaint could be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.” See Conley v. Gibson, 355 U.S. 41, 45 (1957). A sheer possibility of success is no longer enough-now a complaint must include “sufficient factual matter” to make a claim “plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks and citation omitted). And while courts should generally accept factual allegations as true when considering a motion to dismiss, legal conclusions and “naked assertions” do not receive this same presumption of truth. Id. at 1949-50.
As a result, complaints that rely entirely on “labels and conclusions” or on a “formulaic recitation of the elements of a cause of action” should be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Legal conclusions can frame a complaint, but they must be enhanced by “well-pleaded factual allegations.” Ashcroft, 129 S. Ct. at 1950.
Plaintiffs fall short of this standard. Their complaint rests on legal conclusions and lacks the requisite factual enhancements needed for this case to move forward. Thus, the motion to dismiss should be granted.
I. In their DOMA challenge, Plaintiffs have not pled sufficient facts to meet the constitutional standing requirements.
In every federal suit, the plaintiff bears the burden to show standing for each of his claims. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The “irreducible constitutional minimum of standing” includes three elements: injury in fact, causation, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (citations omitted). “Injury in fact” is a harm that is concrete and actual or imminent, not conjectural or hypothetical. Id. at 103. “Causation” is a traceable connection between the plaintiff’s injury and the defendant’s conduct. Id. “Redressability” is the likelihood that the requested relief will redress the alleged injury. Id. Just as with their previously dismissed challenge to DOMA, Plaintiffs have failed to allege an injury in fact, and thus they do not have standing to bring this case.
A. The Ninth Circuit’s decision dismissing Plaintiffs’ previous challenge to DOMA for lack of standing still controls, as Plaintiffs have failed to cure all the deficiencies raised in that decision.
Just as in their previous lawsuit, Plaintiffs are challenging Sections 2 and 3 of DOMA. Section 2 provides that no state is required to give full faith and credit to another state’s determination that “a relationship between persons of the same sex ... is treated as marriage.” 28 U.S.C. § 1738C. In the previous suit, this Court concluded, and the Ninth Circuit affirmed, that Plaintiffs lacked standing because they did not claim “to have plans to seek recognition of their eventual California marriage in another state.” Smelt v. County of Orange, 374 F. Supp. 2d 861, 871 (C.D. Cal. 2005), aff’d, 447 F.3d at 683.
Plaintiffs now allege that they have entered into a legal union recognized by California as a marriage. See Complaint ¶ 2. But they still have not alleged any plans to seek recognition of that union in another state. Without this sort of factual allegation, Section 2 is not implicated, and Plaintiffs cannot claim to have suffered any concrete, particularized injury. So the Ninth Circuit’s holding still controls here.
Plaintiffs’ renewed challenge to Section 3 is equally lacking. Section 3 defines the words “marriage” and “spouse” for the 7

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purposes of federal statutes, rules, and regulations. While it defines marriage as “a legal union between one man and one woman as husband and wife,” 1 U.S.C. § 7, Section 3 “does not purport to preclude Congress or anyone else in the federal system from extending benefits to those who are not included within that definition.” Smelt, 447 F.3d at 683.
Against this backdrop, the Ninth Circuit held that Plaintiffs lacked standing in their first challenge to Section 3 because they did not allege “that they have applied for any federal benefits, much less been denied any at this point.” Id. at 684. “That they might someday ... ask for some federal benefit which they are denied is not enough” to establish an injury in fact. Id.
This Complaint is no different. Plaintiffs again do not allege that they have applied for or been denied any federal benefits. So the Ninth Circuit’s previous decision controls, and Plaintiffs again lack standing to challenge Section 3.
B. Prudential-standing considerations further show that Plaintiffs lack standing to challenge Section 3 of DOMA.
The Ninth Circuit also found that Plaintiffs’ initial challenge to Section 3 “stumbles on at least one of the prudential standing hurdles.” Smelt, 447 F.3d at 684. That same roadblock exists here. When considering prudential standing, the Supreme Court has instructed courts to exercise caution and only decide significant constitutional questions when it is necessary to do so:
The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision. Always we must balance the heavy obligation to exercise jurisdiction against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary.
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (quotation marks, alterations, and citations omitted). The Ninth Circuit appropriately exercised this restraint in Smelt because the Section 3 challenge was “excessively generalized,” 447 F.3d at 686, implicating the definition of terms that are used in well over one thousand federal statutory enactments. Id. at 684-85. Due to the generality of Plaintiffs’ challenge-which remains essentially unchanged here-a court could not possibly know “whether in the context of some particular statute as applied to some particular person in some particular situation Congress’s use of the word ‘marriage’ will amount to an unconstitutional classification.” Id. at 685.
Finding that Plaintiffs lack standing here does not close the courthouse doors to all DOMA challenges. A plaintiff who has actually applied for and been denied a federal benefit because of the DOMA definitions, or whose union has been denied recognition in another state, will be better suited to allege a concrete and particularized harm. And plaintiffs in other circumstances may also be able to satisfy the requirements for standing.1 But here, the facts alleged in the Complaint are plainly insufficient to establish standing. * Admitted pro hac vice
II. Plaintiffs have failed to state a valid due-process claim.
Plaintiffs claim that DOMA violates their due-process rights because it impermissibly impairs their right to marry each other. Laws challenged on substantive-due-process grounds need only satisfy the “unexacting” standard of rationally advancing some legitimate state purpose, unless the plaintiff shows that the law infringes a “fundamental” right, in which case strict scrutiny applies. Reno v. Flores, 507 U.S. 292, 302-06 (1993). Here, Plaintiffs cannot show that DOMA infringes on a fundamental right, and DOMA easily satisfies rational-basis review. Thus, the due-process claim should be dismissed.
A. Plaintiffs’ interest in marrying a person of the same sex is not a fundamental right under the Due Process Clause.
The Supreme Court has “always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S.
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115, 125 (1992). Any judicially imposed expansion carries with it significant consequences because it places the issue “outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Courts should thus “exercise the utmost care whenever ... asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the [court].” Id. (quotation marks and citations omitted).
To avoid such improper expansion, courts begin substantive-due-process analysis by carefully describing the asserted right. Id. at 721. This Court has already defined the asserted right at issue in this case. Smelt, 374 F. Supp. 2d at 879. Plaintiffs are not asserting the longstanding right to marry recognized by the Supreme Court. Instead, they are asserting a newly fashioned “right to same-sex marriage.” Id.
After carefully identifying the asserted right, a court must then determine if that right is fundamental. Fundamental rights are those that are so rooted in our history and tradition that they are considered “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (quotation marks and citations omitted).
As this Court has already held, the right to same-sex marriage is not deeply rooted in our Nation’s history and tradition. Smelt, 374 F. Supp. 2d at 879. The Supreme Court has always understood marriage as “the union ... of one man and one woman.” See Murphy v. Ramsey, 114 U.S. 15, 45 (1885). For over two hundred years prior to 2003, there was never a time in our Nation’s history that marriage meant anything else. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (judicially creating same-sex marriage in Massachusetts). And recently, large majority of voters and legislators have strongly reaffirmed marriage as the union of one man and one woman. The law in 44 States now defines marriage as such, and 30 of those States have enshrined that definition in their constitutions.2 Federal law also defines “marriage” as “a legal union between one man and one woman as husband and wife.” 1 U.S.C. § 7. 1 For example, the Commonwealth of Massachusetts recently filed a federal lawsuit challenging DOMA’s constitutionality. See
Commonwealth v. U.S. Dep’t of Health and Human Servs., No. 1:09-cv-11156-JLT (D. Mass. filed July 8, 2009). Intervenors take no position here on whether the Commonwealth has standing to bring such a challenge.
In light of this background, it is not surprising that every other federal court and a majority of state appellate courts that have addressed this issue have refused to find a fundamental right to same-sex marriage. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298, 1307 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 140 (Bankr. W.D. Wash. 2004); Conaway v. Deane, 932 A.2d 571, 627 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006); Andersen v. King County, 138 P.3d 963, 978 (Wash. 2006) (plurality); Morrison v. Sadler, 821 N.E.2d 15, 32-33 (Ind. Ct. App. 2005).
Moreover, all of the Supreme Court’s cases “infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species.” Conaway, 932 A.2d at 619; see also Andersen, 138 P.3d at 978. For the High Court, protecting the right to marry is about ensuring “our very existence and survival,” Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); maintaining our “civilization,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978); and “rais[ing] ... child[ren] in a traditional family setting,” id. at 386. This inherently procreative nature of marriage is unique to opposite-sex couples, and thus the fundamental right to marry is confined to those relationships. Accordingly, Plaintiffs’ asserted right is not the Court-recognized fundamental right to marry, but a novel legal theory-the alleged “right” to same-sex marriage. This is not a fundamental right, and thus heightened scrutiny does not apply.
B. DOMA satisfies rational-basis review.
With Plaintiffs’ theory of fundamental rights foreclosed, DOMA need only be “rationally related to legitimate government interests.” Glucksberg, 521 U.S. at 728. Rational-basis review is “a paradigm of judicial restraint,” and not “a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). A law analyzed under rational-basis review has “a strong presumption of validity.” Id. at 314. And the burden is on the challenging party to “negat[e] every conceivable basis which might support it.” Id. at 315 (quotation marks and citation
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omitted).
Here, the United States has at least two closely related interests for defining marriage as the union of one man and one woman, both of which derive from the government’s legitimate-indeed compelling-interest in promoting the welfare o children, our most precious and vulnerable citizens. See Maryland v. Craig, 497 U.S. 836, 852-53 (1990) (“[I]t is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of [children] is compelling”) (quotation marks and citation omitted). First, the government has a compelling interest in creating a legal structure that promotes the raising of children by both of their biological parents. Only marriage as defined by DOMA unites the biological, legal, and social dimensions of parenthood. Second, the government has a compelling interest in “responsible procreation”-that is, directing the inherently procreative capacity of sexual intercourse between men and women into stable, legally bound relationships.
Only a relationship between a man and a woman “is capable of producing biological offspring of both members.” Conaway, 932 A.2d at 630-31; see also Andersen, 138 P.3d at 982-83. Thus, recognizing those relationships as marriages directly and rationally furthers the government’s interest in encouraging the raising of children by their biological mother and father. By contrast, no matter what measures are taken by same-sex couples, they cannot both be a biological parent of the same child. In fact, the only way for same-sex couples to produce children is to involve a third party, a process that risks commoditizing children and intentionally deprives them of having both biological parents in their family. So recognizing same-sex relationships as marriages does not further the government’s interest in encouraging children to be raised by both biological parents. Not surprisingly, then, many courts-including this one-have found that this government interest satisfies rational-basis review. See, e.g., Smelt, 374 F. Supp. 2d at 880 (finding that the government has legitimate interests in encouraging the optimal union for procreation and for rearing children by both biological parents); Kandu, 315 B.R. at 146 (listing cases and holding that “encourag[ing] the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern”).
The government also has an interest in promoting “responsible procreation” among its citizens. This interest is rooted in a concern for children, i.e., the natural result of sexual intercourse between men and women. Relationships between men and women are unique in that they may unintentionally result in the birth of children. See Morrison, 821 N.E.2d at 24 (“ ‘Natural’ procreation ... may occur only between opposite-sex couples and with no foresight or planning”). The government has an interest in directing these unintended children into committed, legally bound relationships between both of their parents. See Hernandez, 855 N.E.2d at 3-4 (stating that a legislature could rationally conclude that marriage “create[s] more stability and permanence in the relationships that cause children to be born” and that “it is better, other things being equal, for children to grow up with both a mother and a father”).
Same-sex relationships, however, do not naturally or unintentionally result in pregnancy and child birth. Hence, recognizing those relationships as marriages “would not further [the government’s] interest in ... ‘responsible procreation.’ ” Morrison, 821 N.E.2d at 24-26, 29-31; Standhardt v. Superior Court, 77 P.3d 451, 462-63 (Ariz. Ct. App. 2003).
Similarly, it would not further the federal government’s interests to force states that define marriage as the union of one man and one woman to recognize same-sex marriages from other states. Section 2 of DOMA reasonably allows each state to establish its own public policy on this important issue of domestic relations-an issue “that has long been regarded as a virtually exclusive province of the States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877) (“The State ... has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created”), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186 (1977).
In sum, DOMA furthers compelling government interests and is properly tailored to promote those interests. Thus, Plaintiffs cannot offer a cognizable legal theory that their due-process rights have been violated, and as a result, the motion to dismiss should be granted.
III. Plaintiffs have not alleged facts sufficient to maintain their equal-protection claim.
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). It prohibits the government from “invidiously classif[ying]
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similarly situated people on the basis of the immutable characteristics with which they were born.” Michael M. v. Superior Court, 450 U.S. 464, 477-78 (1981). But it “does not require things which are different in fact or opinion to be treated in law as though they were the same.” Skinner, 316 U.S. at 540 (quotation marks and citation omitted).
Plaintiffs have not alleged a cognizable equal-protection claim because (1) they cannot show that DOMA invidiously discriminates against any class of persons; (2) they cannot show that they, as a same-sex couple, are similarly situated to opposite-sex couples; (3) they cannot show that DOMA impermissibly discriminates based on sex; and (4) they cannot show that DOMA impermissibly discriminates based on sexual orientation. This claim should be dismissed.
A. Plaintiffs have not alleged that DOMA invidiously discriminates against a class of persons-a required element of equal-protection claims.
A threshold requirement for any equal-protection claim is a showing of invidious discrimination. See Michael M., 450 U.S. at 477-78. This requires proof that the government acted with discriminatory intent or purpose. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003); Washington v. Davis, 426 U.S. 229, 239 (1976). The Complaint fails to allege that the United States acted with discriminatory intent or purpose in passing DOMA, and it provides no factual allegations to support such a claim. Thus, the equal- protection claim should be dismissed.
B. Same-sex couples are not similarly situated to opposite-sex couples for the purpose of DOMA.
Another threshold requirement for an equal-protection claim is showing that a similarly situated class has been treated disparately. Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221, 1225-26 (9th Cir. 1990), superseded on other grounds, 42 U.S.C. § 2000cc. The Supreme Court has repeatedly recognized that biological differences between men and women may preclude a plaintiff from satisfying the similarly situated requirement. See, e.g., Miller v. Albright, 523 U.S. 420, 445 (1998) (“The biological differences between... men and ... women provide a relevant basis for differing rules ...”); Michael M., 450 U.S. at 477-78 (finding that men and women are not “similarly situated with respect to ... intercourse and pregnancy”); Rostker v. Goldberg, 453 U.S. 57, 78 (1981). In short, the Equal Protection Clause “surely does not require [the government] to pretend that demonstrable differences between men and women do not really exist.” Michael M., 450 U.S. at 481.
Marriage is an inherently relational construct; thus, challenges to marriage laws necessarily involve different treatment between two classes of couples-same-sex and opposite-sex couples-rather than two classes of individuals. These two classes of couples exhibit biological, sociological, and emotional differences, most notable of which pertain to procreation. Put simply, an opposite-sex couple is a procreative unit, while a same-sex couple is not. Cf id. at 478 (noting that the “most basic” differences between males and females relate to pregnancy and intercourse). Intercourse between opposite-sex couples naturally produces children, but the sexual acts of same-sex couples cannot. Opposite-sex couples provide children with both of their biological parents, but same-sex couples cannot. These undisputed biological differences demonstrate that same-sex and opposite-sex couples are not similarly situated for the purpose of marriage-a relationship that the Supreme Court has always linked to procreation. See Zablocki, 434 U.S. at 384. Thus, Plaintiffs’ equal-protection claim cannot satisfy this threshold requirement and should be dismissed.
C. DOMA does not impermissibly discriminate on the basis of sex.
As this Court has already found, “Supreme Court precedent has only found [impermissible] sex-based classifications in laws that have a disparate impact on one sex or the other.” Smelt, 374 F. Supp. 2d at 876-77 (listing cases). Yet, as many courts have recognized, laws (like DOMA) that define marriage as the union of a man and a woman treat men and women equally-neither may marry a person of the same sex. See, e.g., id. at 877; Kandu, 315 B.R. at 143 (concluding that “the marriage definition contained in DOMA does not classify according to gender”); Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999); In re Marriage Cases, 183 P.3d 384, 440 (Cal. 2008); Andersen, 138 P.3d at 988; Conaway, 932 A.2d at 598; Hernandez, 855 N.E.2d at 10-11. DOMA does not separate men and women into classes and grant benefits to only one class.
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Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
Nor does it place men or women in an unequal position in relation to the other. Consequently, Plaintiffs’ equal-protection claim based on sex discrimination should be dismissed.
D. DOMA does not impermissibly discriminate based on sexual orientation.
DOMA does not discriminate on the basis of sexual orientation. It neither mentions nor makes any distinction based on sexual orientation. A man and a woman can marry regardless of their sexual orientation. And a same-sex couple cannot marry, regardless of whether they are “oriented” to persons of the same sex, the opposite sex, or both sexes. Thus, DOMA treats persons who identify as heterosexual in precisely the same manner it treats persons who identify as homosexual.
Plaintiffs will likely argue that DOMA results in sexual-orientation discrimination because it has a disparate impact on persons who identify as homosexual. But disparate impact is insufficient to establish an equal-protection violation without proof of a discriminatory intent or purpose. See City of Cuyahoga Falls, 538 U.S. at 194; Davis, 426 U.S. at 239. And, as discussed above, Plaintiffs have not alleged that the United States acted with discriminatory intent or purpose when it enacted DOMA. Thus, this claim fails as a matter of law.
Even if this Court were to find that DOMA discriminates based on sexual orientation, controlling precedent requires rational-basis scrutiny. Sexual orientation is not one of the few classifications-race, alienage, national origin, sex, and illegitimacy-that trigger heightened scrutiny under federal law. See Ball v. Massanari, 254 F.3d 817, 823-24 (9th Cir. 2001). Ninth Circuit precedent on this point is unmistakably clear. That court expressly held that “homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny.” High Tech Gays v. Def Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). And it has reaffirmed this holding in at least two decisions since. See Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003); Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008) (noting that its precedent requiring rational-basis review to an equal-protection claim alleging sexual-orientation discrimination “was not disturbed by Lawrence, which declined to address equal protection”).
Additionally, Plaintiffs have not alleged any facts that would support creating a new suspect class. The Supreme Court has identified four distinguishing characteristics of suspect classes: (1) a history of discrimination; (2) a trait that “bears no relation to ability to perform or contribute to society;” (3) an immutable trait; and (4) political powerlessness. See City of Cleburne, 473 U.S. at 440-41. Here, Plaintiffs are unable to establish the latter two characteristics as a matter of law.
“Immutability” defines a human characteristic determined “solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973). The Ninth Circuit has already held that “[h]omosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage.” High Tech Gays, 895 F.3d at 573.
Plaintiffs likewise cannot establish the political-powerlessness factor. Suspect classes are created, inter alia, because discrimination against that class “is unlikely to be soon rectified by legislative means.” City of Cleburne, 473 U.S. at 440. But legislatures across the country routinely address perceived sexual-orientation discrimination.3 Thus, “homosexuals are not without political power; they have the ability to and do ‘attract the attention of the lawmakers,’ as evidenced by such legislation.” High Tech Gays, 895 F.2d at 574 (citing City of Cleburne, 473 U.S. at 445). 2 See Ala. Const. art. I, § 36.03; Alaska Const. art. 1, § 25; Ariz. Const. art. XXX, § 1; Ark. Const. amend. 83, § 1-3; Cal. Const. art.
I, § 7.5; Col. Const. art. II, § 31; 13 Del. Code § 101; Fla. Const. art. I § 27; Ga. Const. art. I, § IV; Haw. Rev. Stat. §§ 572-1, 572-3; Idaho Const. art. III, § 28; Kan. Const. art. XV, § 16; Ky. Const. § 233A; La. Const. art. XII, § 15; Mich. Const. art. I, § 25; Miss. Const. art. XIV, § 263A; Mo. Const. art. I, §33; Mont. Const. art. XIII, § 7; Neb. Const. art. I, § 29; Nev. Const. art. I, § 21; N.D. Const. art. IX, § 28; Ohio Const. art. XV, § 11; Okla. Const. art. II, § 35; Or. Const. art. XV, § 5a; S.C. Const. art. XVII, § 15; S.D. Const. art. XXI, § 9; Tenn. Const. art. XI, § 18; Tex. Const. art. I, § 32; Utah Const. art. I, § 29; Va. Const. art. I, § 15-A; Wis. Const. art. XIII, § 13; 750 Ill. Comp. Stat. 5/212; Ind. Code § 31-11-1-1; Md. Code, Fam. Law § 2-201; Minn. Stat. § 517.01; N.J. Stat. § 37:1-1; N.M. Stat. § 40-1-1; N.Y. Dom. Rel. Law § 5-7; N.C. Gen. Stat. § 51-1.2; 23 Pa. Cons. Stat. § 1704; R.I. Gen. Laws § 15-1-1 - 15-1-5; Wash. Rev. Code § 26.04.010-20; W. Va. Code § 48-2-603; Wyo. Stat. § 20-28
Additionally, the Supreme Court has sternly cautioned against creating new suspect classifications because heightened scrutiny requires an exacting investigation into legislative decisionmaking, and “respect for the separation of powers” weighs
12

Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
against expanding this area of constitutional jurisprudence. Id. at 441; see also Lyng v. Castillo, 477 U.S. 635, 638 (1986) (declining to extend strict scrutiny to close relatives); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (declining to extend strict scrutiny to a class of older persons).
For all the foregoing reasons, Plaintiffs’ equal-protection claim based on sexual orientation should be dismissed.
IV. DOMA is a valid exercise of the federal government’s power under the Full Faith and Credit Clause.
DOMA codifies the well-established legal principle that states are not required, under the Full Faith and Credit Clause, to recognize foreign marriages contrary to their own public policy. While the Full Faith and Credit Clause does not compel states to recognize foreign marriages that conflict with their own public policy, Congress has taken the additional step of enacting DOMA to further protect states’ rights in this regard.
Article IV, section 1 of the U.S. Constitution provides that: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved and the Effect thereof.
(emphasis added).
The plain language of this clause authorizes Congress to determine the effect of one state’s law in another state. Indeed, the Supreme Court has long recognized that Congress retains the power to regulate the extraterritorial effects of state laws. See, e.g., M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 324-25 (1839) (holding that “the authenticity of a judgment and its effect, depend upon the law made in pursuance of the Constitution”) (emphasis added); Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522, 528 (1849) (“the legislation of Congress, so far as it has gone, does not prevent a State from passing acts of limitation ...”) (emphasis added). DOMA is precisely the type of legislation that the Effect Clause gives Congress the power to enact. It simply declares that a state law will not have mandatory effect in another state.
But states have never been legally required under the Full Faith and Credit Clause to recognize marriages of sister states. Marriage recognition has always been an issue of comity (rather than full faith and credit). Comity is a common-law doctrine used to determine “the recognition which one [state] allows within its territory to the legislative, executive or judicial acts of another [sovereign].” Hilton v. Guyot, 159 U.S. 113, 164 (1895). That comity controls marriage-recognition questions is a principle that has been universally accepted in courts around the country. See, e.g., Gaines v. Poindexter, 155 F. Supp. 638, 643 (W.D. La. 1957) (“The rule that the lex loci contractus is controlling as to the validity of a marriage rests on comity alone, and an exception thereto exists where the marriage is repugnant to the public policy of the domicile of the parties or is contrary to its positive laws”) (quoting 55 C.J.S. Marriage § 4(2)); Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (holding that “Indiana’s recognition of the existence of a foreign marriage is a matter of comity,” and rejecting the argument that the Full Faith and Credit Clause required Indiana to recognize an out-of-state marriage); Kelderhaus v. Kelderhaus, 467 S.E.2d 303, 304 (Va. Ct. App. 1996) (referring to comity as the basis for recognizing common-law marriages from other states); Hesington v. Estate of Hesington, 640 S.W.2d 824, 826 (Mo. Ct. App. 1982) (“[A]s a matter of comity, Missouri will recognize a marriage valid where contracted unless to do so would violate the public policy of this state”); Metro. Life Ins. Co. v. Chase, 189 F. Supp. 326, 333 (D. N.J. 1960) (stating that comity does not require recognition of a common-law marriage that may have been valid in the District of Columbia “if contrary to the policy of [New Jersey]”); Brinson v. Brinson, 96 So. 2d 653, 659 (La. 1957) (“[T]he spirit of comity between states does not require a state to recognize a marriage which is contrary to its own public policy”); Henderson v. Henderson, 87 A.2d 403, 409 (Md. 1952) (noting that out-of-state marriages are recognized “merely because of comity”); Milliken v. Pratt, 125 Mass. 374, 380 (1878) (similar).
DOMA merely codifies the general principle that states may follow their own public policies concerning marriage, rather than the policies of other states. The Supreme Court “has often recognized that, consistent with the appropriate application of the full faith and credit clause, there are limits to which the laws and policy of one state may be subordinates to those of another.” Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201, 210 (1941) (listing cases); see also Pacific Employers Ins. Co.
13

Arthur SMELT, et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 2251796...
v. Indus. Accident Comm’n, 306 U.S. 493, 501 (1939).
By enacting DOMA, Congress made clear that if a state redefines marriage to include same-sex couples, it may not impose that policy choice on other states. Other states are free to recognize or ignore such marriages according to their own public policy. Thus, DOMA does not run afoul of the Full Faith and Credit Clause, and Plaintiffs’ claim to the contrary should be dismissed.

V. Plaintiffs’ remaining claims should be summarily dismissed.
Plaintiffs also claim that DOMA violates their rights to privacy, travel, and speech. But these claims are stated as legal conclusions, with no factual allegations supporting them. They make no factual claims whatsoever alleging that DOMA restricts their private conduct, efforts to travel, or ability to communicate with others. These are precisely the type of “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” that the Supreme Court has said are insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8. Ashcroft, 129 S.Ct. at 1949 (holding that the plaintiff’s complaint was deficient under Rule 8).
Likewise, Plaintiffs’ Ninth Amendment claim should also be dismissed. It is well established that the Ninth Amendment does not “independently secur[e] any constitutional rights for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991).
CONCLUSION
In Plaintiffs’ initial challenge to DOMA, the Ninth Circuit clearly explained why Plaintiffs had not alleged a concrete, particularized injury resulting from DOMA. Yet in filing this suit, Plaintiffs still have not offered any such allegation; thus their renewed challenge should be dismissed on the same grounds. Nevertheless, if this Court reaches the merits of Plaintiffs’ claims, DOMA clearly satisfies the applicable standard of rational-basis review.
Respectfully submitted this 27th day of July, 2009.
/s/Brian W. Raum
Brian W. Raum (NY Bar No. 2856102)* 3 In California alone, examples abound. See, e.g., Cal. Fam. Code § 297 (creating domestic partnerships for same-sex couples); Cal.
Civ. Code § 51 (prohibiting sexual-orientation discrimination by business establishments); Cal. Civ. Code § 51.7 (protecting against “intimidation by threat of violence” based on sexual orientation); Cal. Educ. Code § 220 (prohibiting sexual-orientation discrimination by educational institutions); Cal. Educ. Code § 51500 (prohibiting schools from teaching anything that could “promote a discriminatory bias” based on sexual orientation); Cal. Penal Code § 422.55 (prohibiting so-called “hate crimes” motivated by sexual orientation).

ATTORNEY FOR DEFENDANT-INTERVENORS

*

Admitted pro hac vice

14

 
 Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2135249...
2009 WL 2135249 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur Bruno SMELT and Christopher David Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, inclusive, Defendants.
No. SACV-09-286 DOC (MLGx). July 9, 2009.
Plaintiffs’ Amended Opposition to Defendant State of California’s Motion to Dismiss
Richard C. Gilbert / SBN 85912, 950 West Seventeenth Street, Suites D & E, Santa Ana, California 92706-3573, Telephone: 714/ 667-1038, Fax: 714/ 667-2388, Attorney for Plaintiffs.
THE PRIVATE ATTORNEY GENERAL STATUTE OF CALIFORNIA
Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. It’s most recent ruling on the issue, in United States vs. Georgia, Nos. 04-12-3, 04-1236, 2006. WL 4397 (U.S. Jan. 10, 2006) actually opens the door to more lawsuits against states by holding that Plaintiffs may use federal laws to sue state governments if they claim that the state is violating the Constitution.
In City of Bourne, the Supreme Court declared that the federal Religious Freedom Restoration Act (“RFRA”) is a 1993 United States federal law aimed at preventing laws which substantially burden a person’s free exercise of their religion, was unconstitutional as applied to state and local governments, because it exceeded the scope of Congress’s power under Section 5.
In subsequent cases, the Supreme Court considered whether several other statutues constituted a valid exercise of Congress’s Section 5 authority and thus could be used to sue state governments. In Florida Prepaid vs. College, 527 U.S. 627 (1999) the Supreme Court held that state governments could not be sued for patent infringement even though a federal statute expressly authorized such suits.
The Supreme Court explained that the federal law did not fit under Congress’ Section 5 power because Congress had not proven that the states were engaged in pervasive unconstitutional behavior when infringing patents.
The Supreme Court shifts course in two more recent cases, the Supreme Court allowed more leeway for lawsuits filed against state governments under federal statutes. Nevada Department of Human Resources vs. Hibbs, 538 U.S. 721 (2003), was a Supreme Court case which held that Congress had constitutionally abrogated the states’ sovereign immunity by enacting the Family and Medical Leave Act of 1993. The Court held that state governments may be sued for violating the family leave provisions of the Family and Medical Leave Act.
The Supreme Court found that when Congress enacted this law it was concerned with gender discrimination and that the loss of family leave disproportionately affected women in the workplace. The Supreme Court said gender discrimination receives intermediate scrutiny rather than the rational-basis review that applies to age or disability cases, and it concluded that Congress has more latitude to legislate under Section 5 when it aims to eliminate discrimination that receives the courts’ heightened scrutiny.
A year after Hibbs, in Tennessee v. Lane, 541 U.S. 509 (2004) was a case in the Supreme Court of the United States involving Congress’ enforcement powers under Section 5 of the Fourteenth Amendment, The Supreme Court held that state
1

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2135249...
governments may be sued under Title II of the ADA when they discriminate against people with disabilities by limiting their access to the courts.
The case involved a criminal defendant who crawled on his hands and knees to reach a second-floor courtroom that had no wheelchair access or other accommodation for those with disabilities. In its ruling, the Supreme Court emphasized that access to the courts is a long-recognized, basic right and that states can be sued for keeping people with disabilities from exercising it.
But the Lane ruling left many questions unanswered. The Supreme Court said only that states can be sued under Title II if they violate a fundamental right; it did not consider whether Title II could be used to sue state governments for any other reasons.
The Eleventh Circuit upheld a trial court ruling that dismissed Goodman’s claims, but the Supreme Court reversed in a unanimous decision. In a brief opinion written by Justice Antonin Scalia, the Supreme Court stated, “While the members of this Court have disagreed regarding the scope of Congress’ ‘prophylactic’ enforcement powers under Section 5 of the Fourteenth Amendment, no one doubts that Section 5 grants Congress the power to ‘enforce ... the provisions of the amendment by creating private remedies against the states for actual violations of those provisions.’ The Court declared that “Congress is expressly granted authority to enforce the substantive provisions of the Fourteenth Amendment. The decision clearly says that state governments may be sued for violating the Constitution so far as it is reasonably practical.
After the flurry of sovereign immunity cases the Supreme Court decided between 1996 and 2004, a simple, but controversial principle which has emerged. If a federal law targets types of discrimination that receive heightened scrutiny, then it can be used to sue state governments, even without proof of past constitutional violations. But if the statue involves discrimination or other rights violations that don’t receive heightened scrutiny, then Congress cannot authorize suits against states, no matter how elaborate the legislative history. In the instant case of Smelt and Hammer, it has always been argued that same gender marriage is a constitutional fundamental right no different than opposite gender marriage and that, at a minimum, heightened scrutiny must be the standard to adjudicate a fundamental constitutional right.
In Hibbs, for example, the Court found that states could be sued for violating the family leave provision, even without finding that the absence of family leave results in unconstitutional gender discrimination.
United States v. Georgia does not alter this framework but adds to it in an important way. The Supreme Court held that a state government can be sued for violating a federal law when the law authorizes a remedy for a constitutional violation. This will expand the circumstances in which such lawsuits can go forward.
The Hibbs and Lane decisions involve rights that receive heightened scrutiny. In United States vs. Georgia, the Supreme Court focused on the Eighth Amendment’s prohibition of cruel and unusual punishment. The Supreme Court has never articulated a level of scrutiny for this right. In fact, Scalia’s opinion never mentions heightened scrutiny.
Perhaps we cannot interpret United States vs. Georgia as simply holding that a state can be sued using federal law if the suit alleges a direct violation of a right or if there is a heightened-scrutiny claim. If so, then the ruling significantly expands the possibilities for suing state governments. Again, Smelt and Hammer have always asserted, and still do, a heightened scrutiny issue in this case.
California’s Private Attorney General Statute authorizes this case by private counsel because the State of California is alleged to be violating a fundamental constitutional right. guaranteed by the United States Constitution.
The Attorney General for the State of California simply argues the “M” word as a misnomer, and certainly not as a fundamental constitutional right.
California is now using the word “marriage” as a misnomer like smoke and mirrors to present a misleading argument that since Smelt and Hammer are recognized by California to have a second class marriage, less than a fundamental constitutional right guaranteed by the United States Constitution there is no standing.
2

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2135249...
This court must look to what the State of California means by the use of the word “marriage” as it is applied to Smelt and Hammer. California does not mean that Smelt and Hammer have any fundamental constitutional right to be married. In fact, California does not even permit same gender marriage to take place at this time. Not only is there no fundamental constitutional right for same gender couples to marry in California, there is no right at all. Hence, the smoke screen argument that uses the word “marriage” with a wholly different meaning than that of an opposite gender couple. Therefore, the motion to dismiss is a sham. Marriage to the moving party in this case means nothing more than a second class statutory right to be married until such time as the State of California decides to dissolve the right to this second class marriage. If this same argument were applied to opposite gender marriages in California there would be a revolution. Furthermore, in Smelt and Hammer I, the Ninth Circuit Court of Appeals ordered the case “stayed” based upon the claim that Smelt and Hammer must be married to present the issues at bar. It is therefore absurd for California to urge this Court to ignore the ruling of the Ninth Circuit Court of Appeals now that Smelt and Hammer have achieved second class marriage status. Clearly, the Ninth Circuit ruled that if Smelt and Hammer were married they had standing to address DOMA in it’s entirety. For these reasons, it is respectfully requested that the Court deny the Motion. Dated: July 9, 2009 Respectfully Submitted, <<signature>> Richard C. Gilbert, Attorney for Plaintiffs
3

 
 Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2142730...
2009 WL 2142730 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur Bruno SMELT and Christopher David Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, inclusive, Defendants.
No. 8:09CV00286. July 9, 2009.
Plaintiffs’ Opposition to Defendant State of California’s Motion to Dismiss
Richard C. Gilbert / SBN 85912, 950 West Seventeenth Street, Suites D & E, Santa Ana, California 92706-3573, Telephone: 714/ 667-1038, Fax: 714/ 667-2388, Attorney for Plaintiffs.
THE PRIVATE ATTORNEY GENERAL STATUTE OF CALIFORNIA
Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. It’s most recent ruling on the issue, in United States vs. Georgia, Nos. 04-12-3, 04-1236, 2006. WL 4397 (U.S. Jan. 10, 2006) actually opens the door to more lawsuits against states by holding that Plaintiffs may use federal laws to sue state governments if they claim that the state is violating the Constitution.
In City of Bourne, the Supreme Court declared that the federal Religious Freedom Restoration Act (“RFRA”) is a 1993 United States federal law aimed at preventing laws which substantially burden a person’s free exercise of their religion, was unconstitutional as applied to state and local governments, because it exceeded the scope of Congress’s power under Section 5.
In subsequent cases, the Supreme Court considered whether several other statutues constituted a valid exercise of Congress’s Section 5 authority and thus could be used to sue state governments. In Florida Prepaid vs. College, 527 U.S. 627 (1999) the Supreme Court held that state governments could not be sued for patent infringement even though a federal statute expressly authorized such suits.
The Supreme Court explained that the federal law did not fit under Congress’ Section 5 power because Congress had not proven that the states were engaged in pervasive unconstitutional behavior when infringing patents.
The Supreme Court shifts course in two more recent cases, the Supreme Court allowed more leeway for lawsuits filed against state governments under federal statutes. 14 Nevada Department of Human Resources vs. Hibbs, 538 U.S. 721 (2003), was a Supreme Court case which held that Congress had constitutionally abrogated the states’ sovereign immunity by enacting the Family and Medical Leave Act of 1993. The Court held that state governments may be sued for violating the family leave provisions of the Family and Medical Leave Act.
The Supreme Court found that when Congress enacted this law it was concerned with gender discrimination and that the loss of family leave disproportionately affected women in the workplace. The Supreme Court said gender discrimination receives intermediate scrutiny rather than the rational-basis review that applies to age or disability cases, and it concluded that Congress has more latitude to legislate under Section 5 when it aims to eliminate discrimination that receives the courts’ heightened scrutiny.
A year after Hibbs, in Tennessee v. Lane, 541 U.S. 509 (2004) was a case in the Supreme Court of the United States involving Congress’ enforcement powers under Section 5 of the Fourteenth Amendment, The Supreme Court held that state
1

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2142730...
governments may be sued under Title II of the ADA when they discriminate against people with disabilities by limiting their access to the courts.
The case involved a criminal defendant who crawled on his hands and knees to reach a second-floor courtroom that had no wheelchair access or other accommodation for those with disabilities. In its ruling, the Supreme Court emphasized that access to the courts is a long-recognized, basic right and that states can be sued for keeping people with disabilities from exercising it.
But the Lane ruling left many questions unanswered. The Supreme Court said only that states can be sued under Title II if they violate a fundamental right; it did not consider whether Title 11 could be used to sue state governments for any other reasons.
The Eleventh Circuit upheld a trial court ruling that dismissed Goodman’s claims, but the Supreme Court reversed in a unanimous decision. In a brief opinion written by Justice Antonin Scalia, the Supreme Court stated, “While the members of this Court have disagreed regarding the scope of Congress’ ‘prophylactic’ enforcement powers under Section 5 of the Fourteenth Amendment, no one doubts that Section 5 grants Congress the power to ‘enforce ... the provisions of the amendment by creating private remedies against the states for actual violations of those provisions.’ The Court declared that “Congress is expressly granted authority to enforce the substantive provisions of the Fourteenth Amendment. The decision clearly says that state governments may be sued for violating the Constitution so far as it is reasonably practical.
After the flurry of sovereign immunity cases the Supreme Court decided between 1996 and 2004, a simple, but controversial principle which has emerged. If a federal law targets types of discrimination that receive heightened scrutiny, then it can be used to sue state governments, even without proof of past constitutional violations. But if the statue involves discrimination or other rights violations that don’t receive heightened scrutiny, then Congress cannot authorize suits against states, no matter how elaborate the legislative history. In the instant case of Smelt and Hammer, it has always been argued that same gender marriage is a constitutional fundamental right no different than opposite gender marriage and that, at a minimum, heightened scrutiny must be the standard to adjudicate a fundamental constitutional right.
In Hibbs, for example, the Court found that states could be sued for violating the family leave provision, even without finding that the absence of family leave results in unconstitutional gender discrimination.
United States v. Georgia does not alter this framework but adds to it in an important way. The Supreme Court held that a state government can be sued for violating a federal law when the law authorizes a remedy for a constitutional violation. This will expand the circumstances in which such lawsuits can go forward.
The Hibbs and Lane decisions involve rights that receive heightened scrutiny. In United States vs. Georgia, the Supreme Court focused on the Eighth Amendment’s prohibition of cruel and unusual punishment. The Supreme Court has never articulated a level of scrutiny for this right. In fact, Scalia’s opinion never mentions heightened scrutiny.
Perhaps we cannot interpret United States vs. Georgia as simply holding that a state can be sued using federal law if the suit alleges a direct violation of a right or if there is a heightened-scrutiny claim. If so, then the ruling significantly expands the possibilities for suing state governments. Again, Smelt and Hammer have always asserted, and still do, a heightened scrutiny issue in this case.
California’s Private Attorney General Statute authorizes this case by private counsel because the State of California is alleged to be violating a fundamental constitutional right. guaranteed by the United States Constitution.
The Attorney General for the State of California simply argues the “M” word as a misnomer, and certainly not as a fundamental constitutional right.
California is now using the word “marriage” as a misnomer like smoke and mirrors to present a misleading argument that since Smelt and Hammer are recognized by California to have a second class marriage, less than a fundamental constitutional right guaranteed by the United States Constitution there is no standing.
2

Arthur Bruno SMELT and Christopher David Hammer,..., 2009 WL 2142730...
This court must look to what the State of California means by the use of the word “marriage” as it is applied to Smelt and Hammer. California does not mean that Smelt and Hammer have any fundamental constitutional right to be married. In fact, California does not even permit same gender marriage to take place at this time. Not only is there no fundamental constitutional right for same gender couples to marry in California, there is no right at all. Hence, the smoke screen argument that uses the word “marriage” with a wholly different meaning than that of an opposite gender couple. Therefore, the motion to dismiss is a sham. Marriage to the moving party in this case means nothing more than a second class statutory right to be married until such time as the State of California decides to dissolve the right to this second class marriage. If this same argument were applied to opposite gender marriages in California there would be a revolution. Furthermore, in Smelt and Hammer I, the Ninth Circuit Court of Appeals ordered the case “stayed” based upon the claim that Smelt and Hammer must be married to present the issues at bar. It is therefore absurd for California to urge this Court to ignore the ruling of the Ninth Circuit Court of Appeals now that Smelt and Hammer have achieved second class marriage status. Clearly, the Ninth Circuit ruled that if Smelt and Hammer were married they had standing to address DOMA in it’s entirety. For these reasons, it is respectfully requested that the Court deny the Motion. Dated: July 9, 2009 Respectfully Submitted, <<signature>> Richard C. Gilbert, Attorney for Plaintiffs
3

 
 Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610458...

2009 WL 2610458 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur SMELT and Christopher Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, Defendants.
No. SACV09-00286 DOC (MLGx). August 17, 2009.

Reply Memorandum in Support of Defendant United States of America’s Motion to Dismiss
Tony West, Assistant Attorney General, Arthur R. Goldberg, Assistant Director, W. Scott Simpson, Senior Trial Counsel, Department of Justice, Civil Division, Room 7210, Federal Programs Branch, Post Office Box 883, Washington, D.C. 20044, Telephone: (202) 514-3495, Fax: (202) 616-8470, E-mail: scott.simpson @usdoj.gov, Attorneys for Defendant United States of America.
Date: August 24, 2009
Time: 8:30 a.m.

INTRODUCTION
Plaintiffs invite the Court to make broad rulings unnecessarily. The Court should decline that invitation for a number of reasons. This case can and should be decided on much narrower grounds -- plaintiffs’ failure to establish the Court’s jurisdiction over this action and plaintiffs’ inability to demonstrate that they have standing to pursue their claims. The plaintiffs have not shown that any other state has refused to recognize their California marriage, and they do not allege that the federal definitions of “marriage” and “spouse” set forth in DOMA have been applied to them (e.g., plaintiffs do not allege that they have applied for and been denied any federal benefits because of the operation of DOMA). Nothing in plaintiffs’ opposition to the United States’ motion to dismiss -- to the extent it addresses the issues at all -- undercuts either of these threshold arguments (Doc. 40).1 Thus, on the issues of jurisdiction and standing alone, without even reaching the merits, this case should be dismissed.

Footnotes

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.2 And in this case, plaintiffs’ constitutional claims are unavailing. In their opposition brief, plaintiffs offer only a token response to the United States’ arguments on the merits. Indeed, they say nothing at all in response to the arguments concerning their “full faith and credit,” right to travel, right to privacy, First Amendment, or Ninth Amendment claims. On that basis alone, those claims should be dismissed.

1

Much of plaintiffs’ opposition is irrelevant to the United States’ motion to dismiss. Specifically, four of the memorandum’s six

pages are a verbatim repetition of plaintiffs’ opposition (Doc. 33) to the State of California’s motion to dismiss in this action,

focusing on issues of state sovereign immunity that are inapplicable here.

1

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610458...
Accordingly, the present motion to dismiss should be granted.
ARGUMENT
I. This Court Lacks Jurisdiction Over Plaintiffs’ Claims Against the United States Because the State Court Lacked Jurisdiction
Plaintiffs do not dispute that a federal court, after removal of a case from state court, “has no more jurisdiction than the state court” did before removal, see Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1431 (9th Cir. 1984), nor that the Superior Court of California for the County of Orange lacked jurisdiction over plaintiffs’ claims in this case before removal. See Powelson v. United States, 150 F.3d 1103, 1105 (9th Cir. 1998) (dismissing removed matter where “[t]he government [had] not waived its immunity from suit in state courts”); Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir. 1998) (“Without an express waiver of the IRS’s sovereign immunity as an agency of the United States, the state court lacked jurisdiction.”). Plaintiffs’ only response to these principles is to allege that the parties herein “understood” between themselves that this action would initially be filed in state court, followed by removal to this Court by the United States (Doc. 40 at 2). That, however, is inaccurate.3 As explained in the accompanying declaration, the United States at no time agreed to the initial filing of this action in state court, and counsel for the parties did not communicate regarding removal of the case to federal court until after the United States had transmitted its Notice of Removal to this Court. (See Declaration of W. Scott Simpson ¶¶ 2-4 (Attachment 1 hereto).) Thus, there was no “understanding” between the parties regarding the filing of this action in state court or its removal to this Court. In any event, even if there had been such an “understanding” between counsel, it could not create jurisdiction in this Court contrary to the established principles set forth above. See United States v. New York Rayon Importing Co., 329 U.S. 654, 660, 67 S. Ct. 601, 604, 91 L.Ed. 577 (1947) ( “[O]fficers of the United States possess no power through their actions to ... confer jurisdiction on a court in the absence of some express provision by Congress.”); see also United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991) (“[I]t is well-established that litigants cannot confer [subject matter] jurisdiction by consent where none exists.”). 2 This longstanding and bipartisan tradition accords the respect appropriately due to a co-equal branch of government and ensures
that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.
II. Plaintiffs’ Claims and Allegations Against the United States Must Be Dismissed for Lack of Standing
Plaintiffs lack standing to challenge either section of DOMA. Section 2 provides that one state need not recognize a same-sex marriage performed under the laws of another state. 28 U.S.C. § 1738C. Plaintiffs are married under the laws of California, but they are residents of California and do not allege that any other state has refused to recognize their marriage (Complaint ¶¶ 9, 10). Section 3 of DOMA defines the words “marriage” and “spouse” for purposes of federal law, but plaintiffs do not allege that that definition has ever been applied to them. 1 U.S.C. § 7.4 3 Plaintiffs also assert that the United States has “inadvertently led [this Court] to misunderstand why Plaintiffs filed in State court,”
by “fail [ing] to mention” plaintiffs’ state court filing (Doc. 40 at 2). That is also incorrect, as the United States’ motion to dismiss sets forth in detail the facts regarding plaintiffs’ attempted filing in this Court, the denial of in forma pauperis status, and the subsequent filing in state court (Doc. 25 at 8).
Plaintiffs’ only response in support of standing is to assert that “the Ninth Circuit ruled [in Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006)] that if Smelt and Hammer were married they had standing to address DOMA in it’s [sic] entirety” (Doc. 40 at 7). But that is a misreading of the Court of Appeals’ decision, and a misunderstanding of the requirements for standing. Regarding plaintiffs’ lack of standing to challenge Section 2, the court said, “In sum, while Section 2 may affect someone who has been declared married in some state, Smelt and Hammer do not come within that category of people.” Smelt, 447 F.3d at 683 (emphasis added). In other words, marriage was a necessary, but not a sufficient, circumstance for
2

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610458...
challenging Section 2. That also is stated in this Court’s opinion granting summary judgment to the defendants: Plaintiffs ... have not shown they will suffer an imminent injury as a result of section 2. They do not claim to have plans or a desire to get married in Massachusetts or elsewhere and attempt to have the marriage recognized in California. They do not claim to have plans to seek recognition of their eventual California marriage in another state. Without definite plans to engage in an act that will cause them to suffer an injury in fact, Plaintiffs have not established an imminent injury sufficient to confer standing to challenge section 2.
Smelt v. County of Orange, 374 F. Supp. 2d 861, 871 (C.D. Cal. 2005) (emphasis added). Because plaintiffs “do not claim to have plans to seek recognition of their ... California marriage in another state,” they still lack standing to challenge Section 2.
Furthermore, plaintiffs’ argument ignores the Court of Appeals’ separate holding regarding plaintiffs’ lack of standing to challenge Section 3, the definitional section. In that regard, the Court said: In fact, [plaintiffs] do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be married under the law of some state or ask for some federal benefit which they are denied is not enough.
Smelt, 447 F.3d at 684 (citations omitted) (emphasis added). These principles apply regardless of plaintiffs’ marital status. They still have “not suggest [ed] that they have applied for any federal benefits, much less been denied any at this point.” Id. Thus, plaintiffs lack standing to challenge Section 3. Accordingly, the instant motion to dismiss should be granted.
III. Plaintiffs’ Equal Protection and Due Process Claims Must Be Dismissed Because DOMA Survives Rational Basis Review
Plaintiffs’ equal protection and due process claims raise several issues, all of which were addressed in the United States’ motion to dismiss. As established in the government’s opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA.5 Plaintiffs’ only response to the government’s arguments in favor of dismissal is to assert, without elaboration, that “same gender marriage is a ... fundamental right” such that DOMA is subject to “heightened scrutiny,” and to imply that DOMA constitutes “gender discrimination” (Doc. 40 at 4, 5). The United States refuted these assertions in its opening memorandum. 4 The Court has dismissed plaintiffs’ claims against the State of California in this case for lack of standing (Doc. 36).
Courts have held that challenges to DOMA are subject to rational basis review.6 Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. That there is now a debate taking place in this country about same-sex marriage does not make Congress’s belief in this regard any less rational. Basic federalism principles allowed Congress in 1996, and allow Congress now, to take this uniform approach based on a traditional definition of marriage that all 50 states recognize while the states grapple with the emerging debate over same-sex marriage. Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status. 5 See In re Kandu, 315 B.R. 123, 140 (Bankr. D. Wash. 2004); Wilson v. Ake, 354 F. Supp. 2d 1298, 1307 (M.D. Fla. 2005); Hunt v.
Ake, Case No. 04-1852 (M.D. Fla. Jan. 20, 2005); Smelt v. County of Orange, 374 F. Supp. 2d 861, 879 (C.D. Cal. 2005); see also Bishop v. Oklahoma, 447 F. Supp. 2d 1239, 1252 (N.D. Okla. 2006), rev’d on other grounds, No. 06-5188, 2009 WL 1566802 (10th Cir. June 5, 2009).
Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the
3

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610458...
American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.7 Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknow-ledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because “the sterile and the elderly are allowed to marry.” For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality. 6 As noted in the government’s opening brief, under existing Ninth Circuit precedent, plaintiffs’ claims are subject to rational basis
review (Doc. 25 at 25-32). Courts that have considered constitutional challenges to DOMA have applied a rational basis test (see supra n.5).
IV. Plaintiffs Have Conceded the United States’ Motion to Dismiss As to All of Their Other Claims Plaintiffs’ response says nothing about any of their other claims -- under the Full Faith and Credit Clause, the right to travel, the right to privacy, the First Amendment, and the Ninth Amendment -- all of which the United States fully addressed in its motion to dismiss. Given that plaintiffs have not responded to the United States’ arguments on those claims, such arguments must be taken as conceded. See adidas-America, Inc. v. Payless Shoesource, Inc., 546 F. Supp. 2d 1029, 1076 (D. Or. 2008) (failing to respond to opponent’s argument constitutes conceding argument); Canatella v. Stovitz, 365 F. Supp. 2d 1064, 1083-84 (N.D. Cal. 2005) (same); Southern Nevada Shell Dealers Ass’n v. Shell Oil Co., 725 F. Supp. 1104, 1109 (D. Nev. 1989) (same). Thus, the Court can and should dismiss those claims on this basis alone.
CONCLUSION Accordingly, the United States’ motion to dismiss should be granted, and all of plaintiffs’ claims against the United States should be dismissed with prejudice.
Dated: August 17, 2009
Respectfully submitted,
TONY WEST
Assistant Attorney General
ARTHUR R. GOLDBERG
Assistant Director
/s/ W. Scott Simpson
W. SCOTT SIMPSON
Senior Trial Counsel
Attorneys, Department of Justice
Federal Programs Branch
4

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610458...

Civil Division, Room 7210

Post Office Box 883

Washington, D.C. 20044

Telephone: (202) 514-3495

Fax: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA

7

These organizations’ respective policy statements can be located as follows: American Academy of Pediatrics, http://

aappolicy.aappublications.org/cgi/content/full/pediatrics; 109/2/339 (February 2002 policy statement); American Psychological

Association, http:// www.apa.org/pi/lgbc/policy/parents.html (July 2004 policy statement); American Academy of Child and

Adolescent Psychiatry, http:// www.aacap.org/cs/root/policy___statements/gay___lesbian___transgender___and___

bisexual___parents___policy___statement (June 1999 policy statement); American Medical Association,

http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisory-committee/ama-policy-regarding

-sexual-orientation.shtml (AMA Policy Regarding Sexual Orientation); Child Welfare League of America, http://

www.cwla.org/programs/culture/glbtqposition.htm (Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual

Adults).

5

 
 Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610459...
2009 WL 2610459 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California, Southern Division.
Arthur SMELT and Christopher Hammer, Plaintiffs, v.
UNITED STATES OF AMERICA, State of California, and Does 1 through 1,000, Defendants.
No. SACV09-00286 DOC (MLGx). August 17, 2009.
United States of America’s Memorandum in Opposition to Plaintiffs’ Motion to Deem the Complaint Filed Nunc Pro Tunc and the Fee Waiver Granted
Tony West, Assistant Attorney General, Arthur R. Goldberg, Assistant Director, W. Scott Simpson, Senior Trial Counsel, Department of Justice, Civil Division, Room 7210, Federal Programs Branch, Post Office Box 883, Washington, D.C. 20044, Telephone: (202) 514-3495, Fax: (202) 616-8470, E-mail: scott.simpson @usdoj.gov, Attorneys for Defendant United States of America.
The United States of America, by its undersigned counsel, responds as follows to “Plaintiffs’ Motion to Deem the Complaint Filed Nunc Pro Tunc and the Fee Waiver Granted” (Doc. 41):
1. Plaintiffs’ motion is based entirely on what the parties allegedly “understood” regarding the filing of this action and its removal to federal court. In truth, however, no such “understanding” ever existed. As explained in the accompanying declaration of counsel, the United States at no time agreed to the initial filing of this action in state court, and counsel for the parties did not communicate regarding its removal to federal court until after the United States had transmitted its Notice of Removal to this Court. (See Declaration of W. Scott Simpson ¶¶ 2-4 (Attachment 1 hereto).) Thus, there was no “understanding” between the parties regarding the filing of this action in State court or its removal to this Court.
2. In any event, any such understanding between counsel would have been entirely void and ineffective. As stated in the United States’ motion to dismiss, a federal court, after removal of a case from state court, “has no more jurisdiction than the state court” did before removal. See Salveson v. Western States Bankcard Ass’n, 731 F.2d 1423, 1431 (9th Cir. 1984). No agreement of counsel could provide otherwise, given that “officers of the United States possess no power through their actions to ... confer jurisdiction on a court in the absence of some express provision by Congress.” See United States v. New York Rayon Importing Co., 329 U.S. 654, 660, 67 S. Ct. 601, 91 L.Ed. 577 (1947); see also United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991) (“[I]t is well-established that litigants cannot confer [subject matter] jurisdiction by consent where none exists.”).
3. Further, permitting the kind of “understanding” posited by the plaintiffs would be totally inappropriate, aside from the jurisdictional difficulty. Permitting the parties to a dispute to agree beforehand that plaintiff would file a lawsuit in state court and that defendant would thereafter remove to federal court would allow the plaintiff to sidestep all pre-filing requirements in federal court, including the payment of a federal filing fee. The plaintiffs should not be allowed to do so here.
4. Plaintiffs are also asking for relief that makes no sense procedurally. They ask this Court to grant a fee waiver request that was actually filed in a different case, and that a different judge of this Court has already denied. Indeed, they seek an order granting a fee waiver request when no such request is currently pending before the Court. Plaintiffs cite no authority or precedent for such novel action, and the United States is aware of none. Rather than seeking such extraordinary relief, plaintiffs could have appealed the denial of their fee waiver requests in Case No. SACV08-01244 UA. See Andrews v. King, 398 F.3d 1113, 1118 (9th Cir. 2005) (“The denial of a motion to proceed IFP is appealable as a final judgment under 28 U.S.C. § 1291.”) (citing Roberts v. United States Dist. Ct., 339 U.S. 844, 845, 70 S. Ct. 954, 94 L.Ed. 1326 (1950)). But they did not do so.
1

Arthur SMELT and Christopher Hammer, Plaintiffs, v...., 2009 WL 2610459...
5. Lastly, plaintiffs’ motion violates at least two important Local Rules of this Court. First, no conference of counsel has occurred regarding this motion pursuant to Local Rule 7-3. And second, plaintiffs’ motion is not noticed for hearing as required by Local Rule 6-1. Accordingly, “Plaintiffs’ Motion to Deem the Complaint Filed Nunc Pro Tunc and the Fee Waiver Granted” should be denied. Dated: August 17, 2009 Respectfully submitted, TONY WEST Assistant Attorney General ARTHUR R. GOLDBERG Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Federal Programs Branch Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Fax: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANT UNITED STATES OF AMERICA
2

 
 Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 1 of 8 (MLGx), CLOSED, DISCOVERY, RELATED−G
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:09−cv−00286−DOC−MLG

Arthur Smelt et al v. United States of America et al Assigned to: Judge David O. Carter Referred to: Magistrate Judge Marc L. Goldman Related Case: 8:04−cv−01042−DOC −MLG
Case in other court: Orange County Superior Court, 00116748 Cause: 28:1441 Notice of Removal
Plaintiff

Date Filed: 03/09/2009 Date Terminated: 08/24/2009 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Arthur Smelt

represented by Richard C Gilbert Gilbert &Marlowe 950 West 17th Street Suite D &E Santa Ana, CA 92706−3573 714−667−1038 Fax: 714−667−2388 Email: richardattorney@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Christopher Hammer

represented by Richard C Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States of America
Defendant State of California TERMINATED: 07/15/2009
Defendant Does 1 through 1,000

represented by W Scott Simpson U.S. Department of Justice Civil Division − Federal Programs Branch Post Office Box 883 Rm 7210 Washington, DC 20044 202−514−3495 Fax: 202−616−8470 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark R Beckington CAAG − Office of the Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 213−897−1096 Email: Mark.Beckington@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 2 of 8

V. Intervenor Defendant Dennis Hollingsworth Proposition 8 Official Proponent
Intervenor Defendant Gail J Knight Proposition 8 Official Proponent

represented by Andrew P Pugno Law Offices of Andrew P Pugno 101 Parkshore Drive Suite 100 Folsom, CA 95630 916−608−3065 Fax: 916−608−3066 Email: andrew@pugnolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum Alliance Defense Fund 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: braum@telladf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell Alliance Defense Fund 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jcampbell@telladf.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Louis Parker Sam Kim and Associates 5661 Beach Boulevard Buena Park, CA 90621 714−736−5501 Fax: 714−736−9901 Email: michaelparker@sklaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim Sam Kim and Associates PC 5661 Beach Blvd Buena Park, CA 90621 714−736−5501 Fax: 714 736 9901 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew P Pugno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) LEAD ATTORNEY

Case: 8:09-cv-286
Intervenor Defendant Martin F Gutierrez Proposition 8 Official Proponent
Intervenor Defendant Hak−Shing William Tam Proposition 8 Official Proponent

As of: 11/15/2012 06:45 PM PST 3 of 8
PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Louis Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew P Pugno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Louis Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew P Pugno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 4 of 8

Intervenor Defendant Mark A Jansson Proposition 8 Official Proponent
Intervenor Defendant ProtectMarriage.com−Yes on 8 a Project of California Renewal

Michael Louis Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew P Pugno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Louis Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew P Pugno (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Louis Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam Kim (See above for address)

Case: 8:09-cv-286

As of: 11/15/2012 06:45 PM PST 5 of 8
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/09/2009 03/11/2009
03/16/2009 03/27/2009 04/10/2009 04/10/2009 04/10/2009 04/16/2009 04/16/2009 04/17/2009 04/17/2009 04/27/2009 04/27/2009 05/04/2009

# Docket Text
1 NOTICE OF REMOVAL from Orange County Superior Court, case number 00116748 with copy of summons and complaint. Case assigned to Judge Andrew J. Guilford, Discovery to Magistrate Judge Marc L. Goldman. (Filing fee $ 350 paid), filed by plaintiff United States of America.(twdb) (lwag). (Entered: 03/10/2009)
2 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 08−05 −Related Case− filed. Related Case No: SACV04−01042 DOC (MLGx). Case transferred from Judge Andrew J. Guilford to Judge David O. Carter for all further proceedings. The case number will now reflect the initials of the transferee Judge SACV09−00286 DOC (MLGx). Signed by Judge David O. Carter (ade) (Entered: 03/12/2009)
3 Stipulation and Proposed Order Regarding Schedule filed by Defendant United States of America (Simpson, W) (Entered: 03/16/2009)
4 CERTIFICATE OF SERVICE filed by Defendant United States of America, file−stamped Notice of Removal, etc. served on March 27, 2009. (Simpson, W) (Entered: 03/27/2009)
5 ANSWER; filed by (Proposed) Intervenors Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8.(rla) (Entered: 04/15/2009)
6 NOTICE of Interested Parties filed by proposed intervenors Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8, (rla) (Entered: 04/15/2009)
7 NOTICE OF MOTION to Intervene; filed by intervenor defendants Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8. Motion set for hearing on 5/11/2009 at 08:30 AM before Judge David O. Carter. (rla) (Entered: 04/17/2009)
8 APPLICATION for attorney James A. Campbell to Appear Pro Hac Vice filed by Intervenor Defendants Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson and ProtectMarriage.com−Yes on 8. (lwag) (Entered: 04/20/2009)
9 APPLICATION for attorney Brian W. Raum to Appear Pro Hac Vice filed by intervenors Dennis Hollingsworth, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8. (ade) (Entered: 04/20/2009)
10 ORDER by Judge David O. Carter granting 8 Application to Appear Pro Hac Vice by Attorney James A. Campbell on behalf of Intervenor Defendants, designating Michael L. Parker as local counsel. (ade) (Entered: 04/20/2009)
11 ORDER by Judge David O. Carter granting 9 Application to Appear Pro Hac Vice by Attorney Brian W. Raum on behalf of Intervenor Defendants, designating Michael L. Parker as local counsel. (ade) (Entered: 04/20/2009)
12 STATEMENT of Regarding MOTION to Intervene 7 by "Proposition 8 Official Proponents and Campaign Committee" filed by Defendant United States of America. (Simpson, W) (Entered: 04/27/2009)
13 NOTICE OF NON−OPPOSITION to MOTION to Intervene 7 OF PROPOSITION 8 OFFICIAL PROPONENTS AND CAMPAIGN COMMITTEE [Cent. Dist. L.R. 7−9] filed by Defendant State of California. (Beckington, Mark) (Entered: 04/27/2009)
14 Stipulation and Proposed Order Regarding Schedule filed by Plaintiffs Arthur Smelt, Christopher Hammer, Defendants United States of America, State of California (Simpson, W) (Entered: 05/04/2009)

Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 6 of 8

05/05/2009
05/06/2009 05/06/2009 05/07/2009
05/12/2009 05/21/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009
06/12/2009 06/12/2009 06/16/2009

15 MINUTES (IN CHAMBERS): by Judge David O. Carter taking under advisement 7 Motion to Intervene. Before the Court is Motion to Intervene of Proposition 8 Official Proponents and Campaign Committee. Court finds matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7−15. Accordingly, the hearing set May 11, 2009 at 8:30 a.m. is removed from the calendar. Parties will be served with the Courts ruling. (ade) (Entered: 05/05/2009)
16 REPLY in Support of MOTION to Intervene 7 filed by Intervenor Defendants Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8. (Raum, Brian) (Entered: 05/06/2009)
17 MINUTES (IN CHAMBERS) ORDER by Judge David O. Carter Granting 7 Motion to Intervene. (nbo) (Entered: 05/07/2009)
18 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Incorrect event selected RE: Miscellaneous Document 14 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (twdb) (Entered: 05/08/2009)
19 ORDER SETTING SCHEDULING CONFERENCE by Judge David O. Carter, Set/Reset Deadlines/Hearings:( Scheduling Conference set for 8/3/2009 08:30 AM before Judge David O. Carter.) (dg) (Entered: 05/12/2009)
20 ORDER ON STIPULATION REGARDING SCHEDULE by Judge David O. Carter: IT IS HEREBY ORDERED that the defendants United State of America and the State of California shall respond to plaintiff's Complaint herein no later than June 11, 2009. IT IS SO ORDERED. (lwag) (Entered: 05/21/2009)
21 NOTICE OF MOTION AND MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim filed by defendant State of California. Motion set for hearing on 7/13/2009 at 08:30 AM before Judge David O. Carter. (Beckington, Mark) (Entered: 06/11/2009)
22 MEMORANDUM in Support of MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 filed by Defendant State of California. (Beckington, Mark) (Entered: 06/11/2009)
23 REQUEST FOR JUDICIAL NOTICE re MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 filed by defendant State of California. (Beckington, Mark) (Entered: 06/11/2009)
24 APPLICATION to Exceed Page Limitation as to Motion to Dismiss filed by defendant United States of America. (Simpson, W) (Entered: 06/11/2009)
25 NOTICE OF MOTION AND MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof filed by defendant United States of America. Motion set for hearing on 8/3/2009 at 08:30 AM before Judge David O. Carter. (Attachments: # 1 Fee Waiver Orders in State Court Action, # 2 Jurisdictional Statement, Baker v. Nelson)(Simpson, W) (Entered: 06/11/2009)
26 NOTICE OF ERRATA filed by Defendant State of California. correcting Request for Judicial Notice, Request for Relief 23 (Beckington, Mark) (Entered: 06/12/2009)
27 MINUTES OF IN CHAMBERS ORDER held before Judge David O. Carter: Court orders the Scheduling Conference, presently set August 3, 2009, CONTINUED to September 14, 2009 at 8:30 a.m. ( Scheduling Conference set for 9/14/2009 08:30 AM before Judge David O. Carter.) (ade) (Entered: 06/15/2009)
28 MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter, GRANTING APPLICATION FOR LEAVE TO EXCEED PAGELIMIT 24 : The Court hereby GRANTS the Application with the that the opposition brief, if any, is NOT TO EXCEED FORTY−TWO PAGES and the reply brief, if any, are NOT TO EXCEED FIFTEEN PAGES. The Clerk shall serve this minute order on all parties to the action. (rla) (Entered: 06/16/2009)

Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 7 of 8

06/29/2009
07/06/2009 07/09/2009 07/09/2009
07/09/2009 07/10/2009 07/13/2009 07/15/2009
07/17/2009 07/20/2009 07/20/2009
07/27/2009 07/27/2009 07/27/2009

29 RESPONSE IN SUPPORT of MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 filed by Intervenor Defendants Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8. (Raum, Brian) (Entered: 06/29/2009)
30 STATEMENT Regarding Hearing on Motion to Dismiss by State of California filed by Defendant United States of America re: MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 . (Simpson, W) (Entered: 07/06/2009)
31 Opposition re: MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 filed by Plaintiff Arthur Smelt. (Gilbert, Richard) (Entered: 07/09/2009)
32 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Case number is incorrect RE: Objection/Opposition (Motion related) 31 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (rrp) (Entered: 07/09/2009)
33 AMENDED OPPOSITION re: MOTION to Dismiss Case Action Against Defendant State of California for Failure to State a Claim 21 filed by Plaintiff Arthur Smelt. (Gilbert, Richard) (Entered: 07/09/2009)
34 REPLY Support of Motion to Dismiss Action Against Defendant State of California for Failure to State a Claim MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof 25 filed by Defendant State of California. (Beckington, Mark) (Entered: 07/10/2009)
35 MINUTES (IN CHAMBERS) ORDER by Judge David O. Carter taking under advisement 21 Motion by Defendant State of California to Dismiss Case for Failure to State a Claim. (ade) (Entered: 07/13/2009)
36 MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: GRANTING MOTION TO DISMISS 21 : (See document for details.) For the foregoing reasons, the Motion is GRANTED and the State of California is HEREBY DISMISSED WITHOUT PREJUDICE. The Clerk shall serve this minute order on all parties to the action. (rla) (Entered: 07/16/2009)
37 Stipulation and Proposed Order Regarding Schedule filed by Defendant United States of America re: MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof 25 (Simpson, W) (Entered: 07/17/2009)
38 NOTICE OF LODGING filed re Miscellaneous Document 37 (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 07/20/2009)
39 ORDER by Judge David O. Carter on Stipulation Regarding Schedule 37 . Plaintiff's response to the United States' Motion to Dismiss shall be filed no later than 07/27/09. The United States' reply shall be filed no later than 08/17/09. The hearing on the Motion to Dismiss will be heard on 8/24/2009 at 08:30 AM before Judge David O. Carter. (nbo) (Entered: 07/22/2009)
40 OPPOSITION to MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof 25 RESPONSE filed by Plaintiff Arthur Smelt. (Gilbert, Richard) (Entered: 07/27/2009)
41 NOTICE OF MOTION AND First MOTION for Order for FILE COMPLAINT NUNC PRO TUNC filed by PLAINTIFF Arthur Smelt. Motion set for hearing on 8/24/2010 at 08:00 AM before Judge David O. Carter. (Gilbert, Richard) (Entered: 07/27/2009)
42 RESPONSE IN SUPPORT of MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof 25 Intervenors' Memorandum of Points and Authorities In Support of United States of America's Motion to Dismiss filed by Intervenor Defendants Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak−Shing William Tam, Mark A Jansson, ProtectMarriage.com−Yes on 8. (Raum, Brian) (Entered: 07/27/2009)

Case: 8:09-cv-286 As of: 11/15/2012 06:45 PM PST 8 of 8

07/31/2009 08/17/2009 08/17/2009 08/17/2009 08/24/2009 08/24/2009 10/01/2009
10/01/2009

43 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents. The following error(s) was found: Proposed Document was not submitted as separate attachment RE: First MOTION for Order for FILE COMPLAINT NUNC PRO TUNC 41 . In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. (twdb) (Entered: 07/31/2009)
44 REPLY in Support of MOTION to Dismiss Case and Memorandum of Points and Authorities in Support Thereof 25 filed by Defendant United States of America. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W) (Entered: 08/17/2009)
45 MEMORANDUM in Opposition to First MOTION for Order for FILE COMPLAINT NUNC PRO TUNC 41 filed by Defendant United States of America. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W) (Entered: 08/17/2009)
46 REPLY in support First MOTION for Order for FILE COMPLAINT NUNC PRO TUNC 41 filed by Plaintiff Arthur Smelt. (Gilbert, Richard) (Entered: 08/17/2009)
47 MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: GRANTING DEFENDANT'S MOTION TO DISMISS 25 : (See document for details.) For the foregoing reasons, the Motion is GRANTED and the present case is hereby DISMISSED, IN ITS ENTIRETY, WITHOUT PREJUDICE. IT IS SO ORDERED.( MD JS−6. Case Terminated ) (rla) (Entered: 08/24/2009)
48 MINUTES OF Motion Hearing held before Judge David O. Carter re Motion by Defendant United States of America to Dismiss 25 and Motion by Plaintiffs to Deem the Complaint Filed Nunc Pro Tunc and Fee Waiver Granted 41 . Argument by counsel. Motion to Dismiss is granted. Court Reporter: Deborah Parker. (db) (Entered: 09/01/2009)
49 TRANSCRIPT for proceedings held on 08−24−09, 8:30 a.m. Court Reporter: Deborah D. Parker, phone number (714) 542−8409. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through d.parker@ix.netcom.com or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/22/2009. Redacted Transcript Deadline set for 11/1/2009. Release of Transcript Restriction set for 12/30/2009. (Parker, Deborah) (Entered: 10/01/2009)
50 NOTICE OF FILING TRANSCRIPT filed for proceedings 08−24−09, 8:30 a.m. (Parker, Deborah) (Entered: 10/01/2009)

 
 Arthur Smelt and Christopher Hammer v. United States of..., 2009 WL 5948309...
2009 WL 5948309 (C.D.Cal.) (Verdict and Settlement Summary)
Copyright (c) 2012 ALM Media Properties, LLC. All Rights Reserved United States District Court, C.D. California, Southern Division.
Arthur Smelt and Christopher Hammer v. United States of America, State of California and Does No. SACV 09-00286 DOC (MLGx)
DATE OF VERDICT/SETTLEMENT: August 24, 2009 TOPIC: CIVIL RIGHTS - GOVERNMENT - STATE AND LOCAL GOVERNMENT - CONSTITUTIONAL LAW - DUE PROCESS - CONSTITUTIONAL LAW - EQUAL PROTECTION - CONSTITUTIONAL LAW - PRIVACY - FIRST AMENDMENT - FREEDOM OF SPEECH
Same-sex Couple Asserted Federal Act Violated Their Rights
SUMMARY: RESULT: Decision-Defendant
Award Total: $0
The court dismissed the suit, as Judge David O. Carter ruled that U.S. District Court lacked jurisdiction to consider the broader constitutional questions.
EXPERT WITNESSES: ATTORNEYS: Plaintiff: Richard C. Gilbert; Gilbert & Marglowe; Santa Ana, CA (Arthur Smelt, Christopher Hammer) Defendant: W. Scott Simpson; Department of Johnson; Washington, DC (State of California, United States of America) JUDGE: Andrew J. Guilford; David O. Carter; Marc L. Goldman RANGE AMOUNT: 0
STATE: California COUNTY: Not Applicable
INJURIES: Smelt and Hammer argued that the denial of such rights, benefits and responsibilities caused them severe emotional distress, mental anguish, humiliation, loss of liberty and the pursuit of happiness, denial of equal protection of laws, denial of freedom of association, denial of privacy rights, and denial of the right to travel to establish residency anywhere in the U.S. with the full recognition of the legality of their marriage.
Facts: On Jan. 10, 2000, plaintiffs Arthur Smelt and Christopher Hammer, a same-sex couple, received a Declaration of Domestic Partnership from the State of California. They subsequently got married under state law before Proposition 8, which banned same-sex marriage in California, was passed on Nov. 4, 2008.
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Arthur Smelt and Christopher Hammer v. United States of..., 2009 WL 5948309...
The plaintiffs alleged that “the refusal of all states and jurisdictions” to recognize the validity of their marriage results in the denial to them of numerous rights, benefits and responsibilities bestowed on all other married couples, so long as they are opposite-sex couples. They sued the United States of America and the State of California. (On July 15, 2009, their claims against the state were dismissed for lack of standing.) Plaintiffs’ counsel asserted that they are denied the right to Social Security survivor benefits, decision-making authority for funeral arrangements and the disposition of a spouse’s body, the right to bereavement leave in the event of a spouse’s death, the presumption that both spouses are the parent of a child born during marriage, and the right to a certain division of their spouse’s separate property and the couple’s marital property upon the death of a spouse who dies intestate. They targeted their action at the federal Defense of Marriage Act (DOMA). Plaintiffs’ counsel argued that DOMA violated the Constitution’s Full Faith and Credit Clause; their constitutional right to travel; the Due Process Clause of the Fifth Amendment, including its equal protection component; their constitutional right to privacy; their right to free speech; and their rights under the Ninth Amendment. The defense argued that U.S. District Court lacked jurisdiction over the plaintiffs’ claims, that the plaintiffs lack standing to assert their claims, and that the plaintiffs failed to state a claim upon which relief may be granted. They sought a permanent injunction compelling the U.S. to “take all necessary acts to require the entire nation of the United States of America, all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of plaintiffs.” They additionally sought declaratory judgment “establishing that any law that restricts plaintiffs’ rights or distinguishes plaintiffs’ rights in any way from any opposite gender couple to be unconstitutional, under the United States Constitution, including all provisions of the [DOMA].”
ALM Properties, Inc. United States District Court, Central District, Santa Ana PUBLISHED IN: VerdictSearch California Reporter Vol. 9, Issue 10
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 Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1899555...
2009 WL 1899555 (C.D.Cal.) (Trial Motion, Memorandum and Affidavit) United States District Court, C.D. California.
Arthur SMELT et al., Plaintiffs, v.
UNITED STATES OF AMERICA et al., Defendants, and
Dennis Hollingsworth et al., Intervenors.
No. SACV-09-286 DOC (MLGx). June 29, 2009.
Intervenors’ Memorandum of Points and Authorities in Support of Motion to Dismiss Action Against Defendant State of California
Brian W. Raum (NY Bar No. 2856102)*, James A. Campbell (OH Bar No. 0081501)*, Alliance Defense Fund, 15100 North 90th Street, Scottsdale, Arizona 85260, Phone: 480-444-0020, Fax: 480-444-0028, Email: braum @telladf.org, Email: jcampbell@telladf.org.
Andrew P. Pugno (CA Bar No. 206587), Law Offices of Andrew P. Pugno, 101 Parkshore Drive, Suite 100, Folsom, California 95630, Phone: 916-608-3065, Fax: 916-608-3066, Email: andrew@pugnolaw.com.
Sam Kim (CA Bar No. 212964), Michael Parker (CA Bar No. 138253), Sam Kim and Associates, PC, 5661 Beach Boulevard, Buena Park, California 90621, Phone: 714-736-5501, Fax: 714-736-9901, Attorneys for Proposed Intervenors.
Footnotes
The Honorable David O. Carter.
Hearing Date: July 13, 2009
Hearing Time: 8:30 a.m.
Courtroom: 9D
INTRODUCTION
Intervenors Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson, and Proposition 8 Campaign Committee ProtectMarriage.com - Yes on 8, a Project of California Renewal, (collectively referred to as “Intervenors”) join the Motion to Dismiss Action against Defendant State of California, and submit this memorandum in support thereof. Plaintiffs Arthur Smelt and Christopher Hammer allege, among other things, that California’s marriage amendment (commonly known as Proposition 8) violates various provisions of the United States Constitution. (Compl. at ¶ 29.) Plaintiffs, however, lack standing to challenge the constitutionality of Proposition 8.
Under Article III of the United States Constitution, a plaintiff in federal court does not have standing to assert a claim unless he demonstrates that (1) he has suffered an “actual or imminent” injury, (2) there is a causal connection between the injury and the complained-of conduct, and (3) the injury will “likely” be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs cannot establish any of these elements; thus, their challenge to Proposition 8 should be dismissed for lack of standing.
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1899555...
ARGUMENT
I. Plaintiffs Cannot Satisfy The Three Irreducible Constitutional Requirements of Standing To Challenge Proposition 8.
“The judicial power of the United States defined by [Article] III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982).
The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit solely[] to decide on the rights of individuals, and must refrain from passing upon the constitutionality of an act unless obliged to do so in the proper performance of [the] judicial function, when the question is raised by a party whose interests entitle him to raise it.
Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 127 S. Ct. 2553, 2562 (2007) (quotations, citations, and alterations omitted).
“In every federal case, the party bringing the suit must establish standing to prosecute the action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). “[A] plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). “The irreducible constitutional minimum of standing contains three requirements”: “injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-03 (1998) (citations omitted). “Injury in fact” is a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560. “Causation” is “a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant.” Steel Co., 523 U.S. at 103. “Redressability” is “a likelihood that the requested relief will redress the alleged injury.” Id. “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561. Plaintiffs’ allegations do not satisfy these elements; instead, the facts in their complaint show unmistakably that they lack standing to challenge Proposition 8.
First, Proposition 8 has not inflicted, nor threatened to inflict, any concrete or particularized injury on Plaintiffs. According to their complaint, Plaintiffs entered into a legal union “on or subsequent to July 10, 2008,” that the State of California considered to be a “marriage.” (Compl. at ¶ 2.) Recently, the California Supreme Court held that all same-sex unions entered before the enactment of Proposition 8 in November 2008 and considered to be “marriages” by the State “remain valid in all respects.” Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009). Thus, Proposition 8 did not affect Plaintiffs’ legal union, and neither did it inflict a legally cognizable injury for purposes of standing analysis.
Second, Plaintiffs cannot demonstrate the requisite causal connection to establish standing. “[A] federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party[.]” Simon v. E. Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). But, here, none of the harm alleged by Plaintiffs can be attributed to the enactment of Proposition 8. For example, Plaintiffs lament “[t]he refusal of all states and jurisdictions of the United States of America to recognize” their legal union. (Compl. at ¶ 3.) Plaintiffs also complain that the refusal of other jurisdictions to recognize their legal union “results in the denial of hundreds of state law rights, benefits[,] and responsibilities, and more than a thousand federal rights, benefits, and responsibilities.” (Compl. at ¶ 3.) But the Strauss decision makes clear that California continues to grant all “marital” rights, benefits, and responsibilities to Plaintiffs under California law. Strauss, 207 P.3d at 122. And the refusal of other States or the federal government to recognize their legal union is not connected to the enactment of Proposition 8. Thus, Plaintiffs’ complained-of harm cannot be attributed to Proposition 8.
Third, Plaintiffs cannot satisfy the redressability requirement. Redressability requires “that prospective relief will remove the [alleged] harm.” Warth v. Seldin, 422 U.S. 490, 505 (1975). “Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court.” Steel Co., 523 U.S. at 107. Instead, the plaintiff must show “that he personally would benefit in a tangible way from the court’s intervention.” Warth, 422 U.S. at 508. In this case, Plaintiffs request an injunction “mandating and compelling the State of California to eliminate” Proposition 8 from its Constitution. (Compl. at Prayer for Relief ¶ 6.) But that relief would not redress any harm alleged by Plaintiffs. Even with Proposition 8 in place, California
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1899555...
continues to recognize and affirm Plaintiffs’ legal union “in all respects.” Strauss, 207 P.3d at 122. Invalidating and eradicating that provision from California’s Constitution would not affect Plaintiffs’ legal union nor remedy any harm alleged by them. As a result, they cannot satisfy the redressability requirement of standing. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973) (finding no standing where the plaintiff did not demonstrate “the ‘direct’ relationship between the alleged injury and the claim sought to be adjudicated”).
II. Prudential-Standing Considerations Further Demonstrate That Plaintiffs Lack Standing To Challenge Proposition 8.
Prudential-standing considerations additionally weigh against finding that Plaintiffs have standing to challenge the constitutionality of Proposition 8. On the issue of prudential standing, the Supreme Court has said:
The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision. Always we must balance the heavy obligation to exercise jurisdiction[] against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary[.]
Newdow, 542 U.S. at 11 (quotations, alterations, and citations omitted). “One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations.” Id. at 12. “[I]n general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.” Id. at 13.
Plaintiffs’ challenge to Proposition 8 raises issues of great national significance involving domestic relations. Twenty-nine other States, in addition to California, have enacted constitutional amendments similar or identical to Proposition 8.1 Plaintiffs’ challenge to Proposition 8 threatens all these state constitutional provisions defining marriage-- society’s most fundamental domestic relation. Thus, prudential-standing considerations further demonstrate that Plaintiffs lack standing to challenge Proposition 8. * Admitted pro hac vice.
CONCLUSION
For the foregoing reasons, the Court should grant the Motion to Dismiss Action against Defendant State of California.2 1 See Ala. Const. art. I, § 36.03; Alaska Const. art. 1, § 25; Ariz. Const. art. XXX § 1; Ark. Const. amend. 83, § 1-3; Col. Const. art.
II, §31; Fla. Const. art. I § 27; Ga. Const. art. I, §IV; Haw. Const. art. I, § 23; Idaho Const. art. II, 28; Kan. Const. art. XV, § 16; Ky. Const. § 233A; La. Const. art. XII, 15; Mich. Const. art. I, §25; Miss. Const. art. XIV, § 263A; Mo. Const. art. I § 33; Mont. Const. art. XIII, § 7; Neb. Const. art. I, § 29; Nev. Const. art. I, 21; N.D. Const. art. IX, § 28; Ohio Const. art. XV, § 11; Okla. Const. art. II, 35: Or. Const. art. XV, § 5a; S.C. Const. art. XVII, 15; S.D. Const. art. XXI, § 9; Tenn. Const. art. XI, § 18; Tex. Const. art. I, § 32; Utah Const. art. I, 29; Va. Const. art. I, § 15-A; Wis. Const. art. XIII, § 13.
Dated: June 29, 2009
/s/Brian W. Raum
Brian W. Raum (NY Bar No. 2856102)* 2 Intervenors emphasize that their interests and involvement in this case will not cease if the Court finds that Plaintiffs lack standing
to challenge Proposition 8 directly. As discussed in Intervenors’ Memorandum of Points and Authorities in Support of their Motion to Intervene, their significantly protectable interests in Proposition 8 might be adversely affected by a finding that the Federal Defense of Marriage Act’s definitional provision, which defines “marriage” for federal purposes as the “legal union between one man and one woman as husband and wife,” 1 U.S.C. § 7, violates the Due Process or Equal Protection Clauses of the United States Constitution. The relevant legal analysis in resolving Plaintiffs’ claims against Federal DOMA will require this Court to determine
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Arthur SMELT et al., Plaintiffs, v. UNITED STATES OF..., 2009 WL 1899555...

whether the federal government’s definition of marriage is rationally related to a legitimate government purpose. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83-84 (2000) (defining rational-basis review for equal-protection analysis). If this Court were to find that the government lacks a rational basis for defining marriage as the union of a man and a woman, and thus conclude that Federa DOMA’s definitional provision violates the United States Constitution, it would create a judicial precedent that gravely jeopardizes the federal constitutionality of Proposition 8, which defines marriage the same as Federal DOMA. This clear and significant precedential impact on Proposition 8 demonstrates that Intervenors’ interests very well might be impaired by this Court’s ruling on Plaintiffs’ challenge to Federal DOMA. For this reason, as well as others, Intervenors will continue to zealously litigate this case even if this Court dismisses Plaintiffs’ direct claims against Proposition 8.

ATTORNEYS FOR PROPOSED INTERVENORS

*

Admitted pro hac vice

4